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1975-76: (36) HR11315 - Jurisdiction - U.S. Courts in Suits against Foreign Countries
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1975-76: (36) HR11315 - Jurisdiction - U.S. Courts in Suits against Foreign Countries
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The original documents are located in Box 119, folder "1975-76: (36) HR11315" of the
Edward Hutchinson Papers at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Edward Hutchinson donated to the
United States of America his copyrights in all of his unpublished writings in National Archives
collections. Works prepared by U.S. Government employees as part of their official duties are in
the public domain. The copyrights to materials written by other individuals or organizations are
presumed to remain with them. If you think any of the information displayed in the PDF is subject
to a valid copyright claim, please contact the Gerald R. Ford Presidential Library.
IDENTICAL SUBMISSION
TO THE SPEAKER
DEPARTMENT OF STATE
Washington, D.C. 20520
11/12/15
Eld coffey brouph
al
Dear Mr. President:
The Department of State and Department of
Justice submit for your consideration and appropriate
reference the enclosed draft bill, entitled "To
define the circumstances in which foreign states are
immune from the jurisdiction of United States courts
and in which execution may not be levied on their
assets, and for other purposes. " This is a proposed
revision of the draft bill which was submitted in a
letter (enclosed) to the President of the Senate
dated January 22, 1973, and subsequently introduced
by Senators Roman Hruska and Hugh Scott as S. 566
and by Senator William Fulbright as S. 771. A revised
Section-by-Section Analysis explaining the provisions
of the bill in some detail is also enclosed. A hearing
was held on the companion bill H.R. 3493 before the
Subcommittee of the Judiciary in the House of
Representatives in the first session of the Ninety-
Third Congress on June 7, 1973.
The broad purposes of this legislation -- to
facilitate and depoliticize litigation against foreign
states and to minimize irritations in foreign relations
arising out of such litigation -- remain the same. To
this end the revised bill, like its predecessor, would
entrust the resolution of questions of sovereign
immunity to the judicial branch of Government. The
statute would codify and refine the "restrictive theory"
of sovereign immunity which has guided United States
practice with respect to jurisdiction originally set
forth in the letter of May 19, 1952, from the Acting
Legal Adviser, Jack B. Tate, to the Acting Attorney
General, Philip B. Perlman. It would also re-
place the absolute immunity now accorded foreign
The Honorable
Nelson A. Rockefeller,
President of the Senate.
-2-
states from execution of judgment with an immunity
from execution conforming more closely to the
restrictive theory of immunity from jurisdiction.
The measure also includes provisions for service
of process, venue, and jurisdiction in cases against
foreign states which would make it unnecessary to
attach the assets of foreign states for purposes of
jurisdiction.
Numerous technical changes have been made in
the bill on the basis of the hearing in the House
of Representatives, commentaries in a number of legal
journals, and extensive discussions which have been
held with members of the bar as well as the reports
and recommendations of committees of several bar
associations. A number of these technical revisions
are important, but none of them alters the basic
concept of the legislation as originally submitted.
The most important changes include (1) further
definition of "commercial activity carried on in the
United States by a foreign state" and "public debt"
in Section 1603; (2) clarification of the limitations
of immunity in tort actions (Section 1605 (5)), in
respect of counterclaims (Section 1607), and in case
of execution of judgment (Section 1610) ; and (3) sub-
stantial revision of Section 1608 relating to service
of process to conform with Article XXII of the
Convention on Diplomatic Relations, signed at Vienna
April 18, 1961, and with the Federal Rules of Civil
Procedure.
In addition, important new provisions have been
added to preserve the jurisdiction of the courts of
the United States in cases in which a suit in admiralty
is brought to enforce a maritime lien against a vessel
or cargo of a foreign state (Section 1605 (b) and to
avoid interference with disbursements to foreign states
by certain international organizations located in the
United States (Section 1611(a)). These and other
changes are discussed in the enclosed Analysis.
The Departments of State and Justice believe that
this revised draft bill is worthy of and will receive
the support of the bar and would welcome hearings before
-3-
the appropriate committees of the Senate to consider
this measure as soon as possible.
The Office of Management and Budget has advised
that there is no objection to the enactment of this
legislation from the standpoint of the Administration's
program.
Sincerely,
Robert S. Ingersoll
Deputy Secretary of State
Harold R. Tyler, Jr.
Deputy Attorney General
Enclosures:
1. Revised Draft Bill
2. Revised Section-by-Section Analysis
3. Letter to the President of the Senate
dated January 22, 1973
FOREIGN SOVEREIGN IMMUNITIES ACT OF 1975
Section-by-Section Analysis
This bill, entitled the "Foreign Sovereign
Immunities Act of 1975," sets forth the sole
and exclusive standards to be used in resolving
questions of sovereign immunity raised by foreign
states before federal and state courts in the
United States. It is intended to preempt any
other state or federal law (excluding applicable
international agreements) for according immunity
to foreign sovereigns, their political subdivisions,
their agencies and their instrumentalities.
It
is also designed to bring U.S. practice into con-
formity with that of most other nations by leaving
sovereign immunity decisions exclusively to the
courts, thereby discontinuing the practice of
judicial deference to "suggestions of immunity"
from the Executive Branch. (See Ex Parte Peru,
318 U.S. 578, 588-589 (1943)
The bill is not intended to affect the sub-
stantive law of liability. Nor is it intended to
affect either diplomatic or consular immunity, or
the attribution of responsibility between or among
entities of a foreign state -- e.g., whether the
proper entity of a foreign state has been sued, or
whether an entity sued is liable in whole or in
part for the claimed wrong.
Aside from setting forth comprehensive rules
governing sovereign immunity, the bill prescribes:
the jurisdiction of United States district courts
in cases involving foreign states; procedures for
commencing a lawsuit against foreign states in both
federal and state courts; and circumstances under
which attachment and execution may be obtained
against the property of foreign states to satisfy
a judgment against foreign states in both federal
and state courts.
-2-
Constitutional authority for enacting such
legislation derives from Congress' power to pre-
scribe the jurisdiction of federal courts (Art. I,
Sec. 8, Cl. 9; Art. III, Sec. 1) ; to define
offenses against the "Law of Nations" (Art. I,
Sec. 8, Cl. 10); to regulate commerce with foreign
nations (Art. I, Sec. 8, Cl. 3); and "to make all
Laws necessary and proper for carrying into
Execution all Powers vested in
the Government of the United States," including
the judicial power of the United States over
controversies between"a State, or the Citizens
thereof, and foreign states
(Art.
I,
Sec. 8, Cl. 18; Art. III, Sec. 2, Cl. 1). See
National Bank V. Republic of China, 348 U.S. 356,
370-71 (1955) (Reed J., dissenting) cf. Banco
Nacional de Cuba V. Sabbatino, 376 U.S. 398, 425
(1964).
This section-by-section analysis supersedes
the section-by-section analysis that accompanied
the earlier version of the bill (i.e., S. 566 and
H.R. 3493, 93d Cong., 1st Sess.) ; the prior analysis
should not be consulted in interpreting the current
bill and its provisions, and no inferences should
be drawn from differences between the two.
SEC. 2. Jurisdiction in Actions Against Foreign
States
Section 2 of the bill adds a new Section 1330
to Title 28 of the United States Code, and provides
for subject matter and personal jurisdiction of
U.S. district courts over foreign states and their
political subdivisions, agencies and instrumentali-
ties. Section 1330 provides a comprehensive juris-
dictional scheme in cases involving foreign states.
Such broad jurisdiction in the federal courts should
be conducive to uniformity in decision, which is
desirable since a disparate treatment of cases
involving foreign governments may have adverse
-3---
foreign relations consequences. Plaintiffs, how-
ever, will have an election whether to proceed in
federal court or in a court of a State, subject
to the removal provisions of Section 6 of the bill.
(a) Subject Matter Jurisdiction. Section
1330 (a) gives federal district courts original
jurisdiction in personam against foreign states
(defined as including political subdivisions,
agencies and instrumentalities of foreign states)
The jurisdiction extends to any claim with respect
to which the foreign state is not entitled to
immunity under Sections 1605-1607 proposed in the
bill, or under any applicable international agree-
ment of the type contemplated by the proposed
Section 1604.
As in suits against the United States Govern-
ment, jury trials are excluded. See 28 U.S.C. 2402.
Actions tried by a court without jury will tend to
promote a uniformity in decision where foreign
governments are involved.
In addition, the jurisdiction of district
courts in cases against foreign states is to be
without regard to amount in controversy. This is
intended to encourage the bringing of actions
against foreign states in federal courts. Under
existing law, the district courts have diversity
jurisdiction in actions in which foreign states
are parties, but only where the amount in contro-
versy exceeds $10,000. 28 U.S.C. 1332 (a) (2) and
(3). (See analysis of Section 3 of the bill, below.)
(b) Personal Jurisdiction. Section 1330 (b)
provides a federal long-arm statute over foreign
states (including political subdivisions, agencies
and instrumentalities of foreign states) It is
patterned after the long-arm statute Congress
enacted for the District of Columbia. Pub. L. 91-358,
§132 (a), Title I, 84 Stat. 549. Two criteria must
be met: (1) the claim must be one over which the
district courts have original jurisdiction under
Section 1330 (a), meaning a claim for which the
-4--8-
foreign state is not entitled to immunity; and
(2) proper service of process must be made under
the new Section 1608 in the bill.
The first criterion necessitates a substan-
tial contact or other nexus between the United
States and the challenged activity of the foreign
state. Cf. International Shoe Co. V. Washington,
326 U.S. 310, 316 (1945) and McGee V. International
Life Ins. Co., 355 U.S. 220, 223 (1957) Thus,
the activities which under Sections 1605-1607 in
the bill deny to a foreign state immunity from
suit involve either a nexus with the United States
or a waiver by the foreign state of its immunity
from jurisdiction.
(c) Effect of an Appearance. Section 1330 (c)
states that a mere appearance by a foreign state
in an action does not confer personal jurisdiction
with respect to claims which could not be brought
as an independent action under this bill. The
purpose is to make it clear that a foreign state
does not subject itself to claims unrelated to the
action solely by virtue of an appearance before a
U.S. court. While the plaintiff is free to amend
his complaint, he is not permitted to add claims
for relief not based on transactions or occurrences
listed in the bill. The term "transaction or occur-
rence" includes each basis set forth in Sections
1605-1607 for not granting immunity, including
waivers.
SEC. 3. Diversity Jurisdiction as to Foreign States
Section 3 of the bill amends those provisions
of 28 U.S.C. 1332 which relate to diversity juris-
diction of U.S. district courts over foreign states.
Since jurisdiction in actions against foreign states
is comprehensively treated by the new Section 1330,
a similar jurisdictional basis under Section 1330
becomes superfluous. The amendment deletes references
to "a foreign state" now found in paragraphs (2) and
(3) of 28 U.S.C. 1332 (a), and adds a new paragraph
-5-
(4) to provide for diversity jurisdiction in
actions brought by a foreign state as plaintiff.
These changes would not affect the applicability
of Section 1332 to entities that are both owned
by a foreign state and are also citizens of a
state of the United States as defined in 28 U.S.C.
1332 (c) and (d). See analysis to Section 1603 (b)
SEC. 4. New Chapter 97: Sovereign Immunity
Provisions
Section 4 of the bill adds a new Chapter 97
to Title 28, U.S. Code, which sets forth the legal
standards under which federal and state courts
would henceforth determine all claims of sovereign
immunity raised by foreign states and their politi-
cal subdivisions, agencies and instrumentalities.
The specific sections of Chapter 97 are as follows:
Section 1602. Findings and Declaration of Purpose.
Section 1602 sets forth the central premise
of the bill: that decisions on claims by foreign
states to sovereign immunity are best made by the
judiciary on the basis of a statutory regime which
incorporates standards recognized under international
law.
Although the general concept of sovereign
immunity appears to be recognized in international
law, its specific content and application have
generally been left to the courts of individual
nations. There is, however, a wide acceptance of
the so-called "restrictive theory" of sovereign
immunity -- i.e., that the sovereign immunity of
foreign states should be "restricted" to cases
involving acts of a foreign state which are
sovereign or governmental in nature, as opposed to
acts which are either commecial in nature or those
which private persons normally perform. This restric-
tive theory has been adhered to by the Department of
-6-
State since the "Tate letter" of May 19, 1952.
26 Dept. of State Bull. 984 (1952)
Section 1603. Definitions.
Section 1603 defines five terms that are used
in the bill:
(a) Foreign State. Subsection (a) defines
the term foreign state as used in all provisions
of Chapter 97, except Sections 1606 and 1608. In
those latter two sections, the term "foreign state"
refers only to the sovereign state itself.
As the definition indicates, the term "foreign
state" as used in every other section of Chapter 97
includes not only the foreign state but also poli-
tical subdivisions, agencies and instrumentalities
of the foreign state. The term "political subdivi-
sions" includes all governmental units beneath the
central government including local governments.
(b) Agency or Instrumentality of a Foreign
State. Subsection (b) defines an "agency or instru-
mentality of a foreign state" as any entity (1)
which is a separate legal person, (2) which is an
organ of a foreign state or of a political subdivision
of a foreign state, or a majority of whose shares or
other ownership interest is owned by a foreign state
or by a foreign state's political subdivision, and
(3) which is neither a citizen of a State of the United
States as defined in 28 U.S.C. 1332 (c) and (d) nor
created under the laws of any third country.
The first criterion, that the entity be a
separate legal person, is intended to include a
corporation, association, foundation or any other
entity which, under the law of the foreign state
where it was created, can sue or be sued in its
own name, contract in its own name or hold property
in its own name.
-7-
The second criterion requires that the entity
be either an organ of a foreign state (or of a
foreign state's political subdivision), or that a
majority ofthe entity's shares or other ownership
interest be owned by a foreign state (or by a foreign
state's political subdivision). If such entities
are entirely owned by a foreign state, they would
of course be included within the definition. Where
ownership is divided between a foreign state and
private interests, the entity will be deemed to
be an agency or instrumentality of a foreign state
only if a majority of the ownership interests (shares
of stock or otherwise) is owned by a foreign state
or by a foreign state's political subdivision.
The third criterion excludes entities which
are citizens of a state of the United States as
defined in 28 U.S.C. 1332 (c) and (d) -- for example,
a corporation organized and incorporated under the
laws of the State of New York but owned by a foreign
state. See Amtorg Trading Corp. V. United States,
71 F.2d 524 (C.C.P.A. 1934). Also excluded are
entities which are created under the laws of third
countries. The rationale behind these exclusions is
that if a foreign state acquires or establishes a
company or other legal entity in a foreign country,
such entity is presumptively engaging in activities
that are either commercial or private in nature.
An entity which does not fall within the defi-
nitions of Sections 1603 (a) or (b) would not be
entitled to sovereign immunity in any case before a
federal or state court. On the other hand, the fact
that an entity is an "agency or instrumentality of
a foreign state" does not in itself establish an
entitlement to sovereign immunity. A court would
have to consider whether one of the sovereign
immunity exceptions contained in the bill (see
Sections 1605-07 and 1610-11) was applicable.
As a general matter, entities which meet the
definition of an "agency or instrumentality of a
foreign state" could assume a variety of forms,
including a state trading corporation, a mining
-8-
enterprise, a transport organization such as a
shipping line or airline, a steel company, a
central bank, an export association, a govern-
mental procurement agency or a department or
ministry which acts and is suable in its own
name.
(c) United States. Paragraph (c) of Section
1603 defines "United States" as including all
territory and waters subject to the jurisdiction
of the United States.
(d) Commercial Activity. Paragraph (c) of
Section 1603 defines the term "commercial activity"
as including a broad spectrum of endeavor, from an
individual commercial transaction or act to a
regular course of commercial conduct. A "regular
course of commercial conduct" includes the carrying
on of a commercial enterprise such as a mineral
extraction company, an air line or a state trading
corporation. Certainly, if an activity is custom-
arily carried on for profit, its commercial nature
could readily be assumed. At the other end of the
spectrum, a single contract, if of the same character
as a contract which might be made by a private person,
could constitute a "particular transaction or act.
As the definition indicates, the fact that
goods or services to be procured through a contract
are to be used for a public purpose is irrelevant;
it is the essentially commercial nature of an
activity or transaction that is critical. Thus, a
contract by a foreign government to buy provisions
or equipment for its armed forces or to construct
a government building constitutes a commercial
activity. The same would be true of a contract
to make repairs on an embassy building. Such
contracts should be considered to be commercial
contracts, even if their ultimate object is to
further a public function.
By contrast, a foreign state's mere participa-
tion in a foreign assistance program administered
by the Agency for International Development (AID)
-9-
is an activity whose essential nature is public
or governmental, and it would not itself consti-
tute a commercial activity. By the same token,
a foreign state's activities in and "contacts"
with the United States resulting from or neces-
sitated by participation in such a program would
not in themselves constitute a sufficient commercial
nexus with the United States so as to give rise to
jurisdiction (see Section 1330) or to assets which
could be subjected to attachment or execution with
respect to unrelated commercial transactions (see
Section 1610(b)). However, a transaction to obtain
goods or services from private parties would not
lose its otherwise commercial character because it
was entered into in connection with an AID program.
Also public or governmental and not commercial in
nature, would be the employment of diplomatic, civil
service or military personnel, but not the employment
of American citizens or third country nationals by
the foreign state in the United States.
The courts would have a great deal of latitude
in determining what is a "commercial activity" for
purposes of this bill. It has seemed unwise to
attempt an excessively precise definition of this
term, even if that were practicable. Activities
such as a foreign government's sale of a service
or a product, its leasing of property, its borrowing
of money, its employment or engagement of laborers,
clerical staff or public relations or marketing
agents, or its investment in a security of an
American corporation, would be among those included
within the definition.
(e) Commercial Activity Carried on in the
United States by a Foreign State. As paragraph (d)
of Section 1603 indicates, a commercial activity
carried on in the United States by a foreign state
would include not only a commercial transaction
performed and executed in its entirety in the United
States, but also a commercial transaction or act
having a "substantial contact" with the United States.
This definition includes cases based on commercial
transactions performed in whole or in part in the
United States, import-export transactions involving
- 10 -
sales to, or purchases from, concerns in the
United States, business torts occurring in the
United States (cf. § 1605 (a) (5)), and an indebt-
edness incurred by a foreign state which negotiates
or executes a loan agreement in the United States, or
which receives financing from a private or public
lending institution located in the United States
(e.g. loans, guarantees or insurance provided by
the Export-Import Bank of the United States). It
will be for the courts to determine whether a par-
ticular commercial activity has been performed in
whole or in part in the United States. This defini-
tion, however, is intended to reflect a degree of
contact beyond that occasioned simply by U. S.
citizenship or U.S. residence of the plaintiff.
Section 1604. Immunity of Foreign States from
Jurisdiction.
New Chapter 97 of Title 28, United States
Code, starts from a premise of immunity and then
creates exceptions to the general principle. The
chapter is thus cast in a manner consistent with
the way in which the law of sovereign immunity
has developed. Stating the basic principle in
terms of immunity may be of some advantage to
foreign states in doubtful cases, but, since
sovereign immunity is an affirmative defense
which must be specially pleaded, the burden will
remain on the foreign state to produce evidence
in support of its claim of immunity.
The immunity from jurisdiction provided in
Section 1604 applies to proceedings in both federal
and state courts. Section 1604 would be the only
basis under which a foreign state can claim immunity
from the jurisdiction of any federal or state court
in the United States.
All immunity provisions are made subject to
"existing" treaties and other international agree-
ments to which the United States is a party. In
the event of any conflict with this bill, provisions
-11-
in treaties and international agreements would
control. They include inter alia treaties of
friendship, commerce and navigation and bilateral
air transport agreements which contain provisions
relating to the immunity of foreign states.
Similarly, this bill would not alter the rights
or duties of the United States under the NATO
Status of Forces Agreement or similar agreements
with other countries; nor would it alter the
provisions of commercial contracts, or existing
and future agreements to which the United States
is a party, calling for exclusive nonjudicial
remedies through arbitration or other procedures for
the settlement of disputes.
The immunity provisions are also subject to
"future" international agreements. Included in
this concept is the possibility of a future inter-
national convention on sovereign immunity, just as
there are in existence at present international
conventions on diplomatic and consular immunity.
Section 1605. General Exceptions to the Jurisdictional
Immunity of Foreign States.
Section 1605 sets forth the general circumstances
in which a claim of sovereign immunity by a foreign
state, as defined in Section 1603 (a) would not be
recognized in a federal or state court in the United
States.
(a) (1) Waivers. Section 1605 (a) (1) treats
explicit and implied waivers by foreign states of
sovereign immunity. With respect to explicit waivers,
a foreign state may renounce its immunity by treaty,
as has been done by the United States with respect
to commercial and other activities in a series of
treaties of friendship, commerce, and navigation,
or a foreign state may waive its immunity in a contract
with a private party. Since the sovereign immunity
of a political subdivision, agency or instrumentality
-12-
of a foreign state derives from the foreign state
itself, the foreign state may waive the immunity
of its political subdivisions, agencies or
instrumentalities.
With respect to implicit waivers, the courts
have found such waivers in cases where a foreign
state has agreed to arbitration in another country
or where a foreign state has agreed that the law of
a particular country should govern a contract. An
implicit waiver would also include a situation where
a foreign state has filed a responsive pleading in
an action without raising the defense of sovereign
immunity.
The language, "notwithstanding any withdrawal
of the waiver which the foreign state may purport to
effect except in accordance with the terms of the
waiver," is designed to exclude a withdrawal of the
waiver both after and before a dispute arises except
in accordance with the terms of the original waiver.
In other words, if the foreign state agrees to a
waiver of sovereign immunity in a contract, that
waiver may subsequently be withdrawn only in a
manner consistent with the expression of the waiver
in the contract. Some court decisions have allowed
subsequent and unilateral rescissions of waivers by
foreign states. But the better view, and the one
followed in this section, is that a foreign state
which has induced a private person into a contract
by promising not to invoke its immunity cannot,
when a dispute arises, go back on its promise and
seek to revoke the waiver unilaterally.
(a) (2) Commercial Activities Having a Nexus
with the United States. Section 1605 (a) (2) treats
what is probably the most important instance in
which foreign states are denied immunity, that in
which the foreign state engages in a commercial
activity. The definition of a "commercial activity"
is set forth in Section 1603 (d) of the bill, and
is discussed in the analysis to that section.
-13-
Section 1605 (a) (2) mentions three situations
in which a foreign state would not be entitled to
immunity with respect to a claim based upon a commercial
activity. The first of these situations is where the
"commercial activity [is] carried on in the United
States by the foreign state." This phrase is defined
in Section 1603 (e) of the bill. See the analysis to
that section.
The second situation, an "act performed in the
United States in connection with a commercial activity
of the foreign state elsewhere," looks to conduct of
the foreign state in the United States which relates
either to a regular course of commercial conduct
elsewhere or to a particular commercial transaction
concluded or carried out in part elsewhere. Examples
of this type of situation might include: a representa-
tion in the United States by an agent of a foreign state
that leads to an action for restitution based on unjust
enrichment; an act in the United States that violates
U.S. securities laws or regulations; the wrongful
discharge in the United States of an employee of the
foreign state who has been employed in connection with
a commercial activity carried on in some third country.
Although some or all of these acts might also be
considered to be a "commercial activity carried on in
the United States," as broadly defined in Section 1603
(e), it has seemed advisable to provide expressly for
the case where a claim arises out of a specific act
in the U.S. which is commercial or private in nature
and which relates to a commercial activity abroad.
It should be noted that the acts (or omissions)
encompassed in this category are limited to those
which in and of themselves are sufficient to form the
basis of a cause of action.
The third situation -- "an act outside the
territory of the United States in connection with
a commercial activity of the foreign state elsewhere
and that act causes a direct effect in the United
States" -- would embrace commercial conduct abroad
-14-
having direct effects within the United States which
would subject such conduct to the exercise of
jurisdiction by the United States consistent with
principles set forth in Section 18, Restatement of
the Law, Second, Foreign Relations Law of the United
States (1965).
Neither the term "direct effect" nor the concept
of "substantial contacts" embodied in Section 1603 (e)
is intended to alter the application of the Sherman
Antitrust Act, 15 U.S.C. 1, et seq. to any defendant.
Thus, the bill does not affect the holdings in such
cases as United States V. Pacific & Arctic Ry. & Nav.
Co., 228 U.S. 87 (1913), or Pacific Seafarers, Inc. V.
Pacific Far East Line, Inc., 404 F.2d 803 (D.C. Cir.
1968), cert. denied, 393 U.S. 1093 (1969).
(a) (3) Expropriation Claims. Section 1605 (a)
(3) would, in two categories of cases, deny immunity
where "rights in property taken in violation of
international law are in issue. The first category
involves cases where the property in question or any
property exchanged for such property is present in the
United States, and where such presence is in connection
with a commercial activity carried on in the United
States by the foreign state, or political subdivision,
agency or instrumentality of the foreign state. The
second category is where the property, or any property
exchanged for such property, is (i) owned or operated
by an agency or instrumentality of a foreign state
and (ii) that agency or instrumentality is engaged in
a commercial activity in the United States. Under
the second category, the property need not be present
in connection with a commercial activity of the agency
or instrumentality.
The term "taken in violation of international
law" would include the nationalization or expropria-
tion of property without payment of compensation
required by international law. It would also include
takings which are arbitrary or discriminatory in
nature. Since, however, this section deals solely
with issues of immunity, it in no way affects existing
-15-
law on the extent to which, if at all, the "act
of state" doctrine may be applicable.
(a) (4) Immovable, Inherited and Gift Property.
Section 1605 (a) (4) denies immunity in litigation
relating to rights in real estate and in inherited
or gift property located in the United States. It
is established that, as set forth in the "Tate
Letter" of 1952, sovereign immunity should not be
granted in actions with respect to real property,
diplomatic and consular property excepted. 26 Dept.
of State Bulletin 984 (1952). It does not matter
whether a particular piece of property is used for
commercial or public purposes.
It is maintainable that the exception mentioned
in the "Tate Letter" with respect to diplomatic and
consular property is limited to questions of attach-
ment and execution and does not apply to an adjudica-
tion of rights in that property. Thus the Vienna
Convention on Diplomatic Relations, concluded in
1961, provides in Article 22 that the "premises of
the mission, their furnishings and other property
thereon and the means of transport of the mission
are immune from search, requisition, attachment or
execution." Actions short of attachment or execution
seem to be permitted under the Convention, and a
foreign state cannot deny to the local state the
right to adjudicate questions of ownership, rent,
servitudes, and similar matters, as long as the
foreign state's possession of the premises is not
disturbed.
There is general agreement that a foreign
state may not claim immunity when the suit against
it relates to rights in property, real or personal,
obtained by gift or inherited by the foreign state
and situated or administered in the country where
the suit is brought. As stated in the "Tate Letter,'
immunity should not be granted "with respect to the
disposition of the property of a deceased person
even though a foreign sovereign is the beneficiary."
The reason is that, in claiming rights in a decedent's
estate or obtained by gift, the foreign state claims
the same right which is enjoyed by private persons.
-16-
(a) (5) Non-Commercial Torts. Section 1605 (a)
(5) is directed primarily at the problem of traffic
accidents but is cast in general terms as applying
to all tort actions for money damages, not otherwise
encompassed by Section 1605 (a) (2) relating to
commercial activities. It denies immunity as to
claims for personal injury or death, or for damage
to or loss of property, caused by the tortious act
or omission of a foreign state or its officials or
employees, acting within the scope of their
authority; the tortious act or omission must occur
within the jurisdiction of the United States, and
must not come within one of the exceptions enumerated
in the second paragraph of the subsection.
As used in Section 1605 (a) (5), the phrase
"tortious act or omission" is meant to include causes
of action which are based on strict liability as well
as on negligence. The exceptions provided in
subparagraphs (A) and (B) of Section 1605 (a) (5)
correspond to many of the claims with respect to
which the United States Government retains immunity
under the Federal Tort Claims Act, 28 U.S.C. 2680 (a)
and (h).
Like other provisions in the bill, Section 1605
is subject to existing and future international
agreements (see Section 1604) including Status of
Forces Agreements; if a remedy is available under
a Status of Forces Agreement, the foreign state is
immune from such tort claims as are encompassed in
Sections 1605 (a) (2) and 1605 (a) (5).
Since the bill deals only with the immunity of
foreign states and not its diplomatic or consular
representatives, Section 1605 (a) (5) would not govern
suits against diplomatic or consular representatives
but only suits against the foreign state. It is
noteworthy in this regard that while the Vienna
Convention on Consular Relations of 1963 expressly
abolishes the immunity of consular officers with
respect to civil actions brought by a third party
for "damage arising from an accident in the receiving
State caused by a vehicle, vessel or aircraft," there
is no such provision in the Vienna Convention on
Diplomatic Relations of 1961. Consequently, no
-17-
case relating to a traffic accident can be brought
against a member of a diplomatic mission.
The purpose of Section 1605 (a) (5) is to permit
the victim of a traffic accident or other non-
commercial tort to maintain an action against the
foreign state to the extent otherwise provided by
law. See, however, Section 1605 (c).
(b) Maritime Liens. Section 1605 (b) denies
immunity to a foreign state in cases where (i) a
suit in admiralty is brought to enforce a maritime
lien against a vessel or cargo of that foreign state,
(ii) the maritime lien is based upon a commercial
activity of the foreign state, and (iii) the
conditions in paragraphs (1) and (2) of Section 1605
(b) have been complied with.
The purpose of this subsection is to permit
a plaintiff to bring suit in a United States
district court arising out of a maritime lien
involving a vessel or cargo of a foreign sovereign
without arresting the vessel, by instituting an in
personam action against the foreign state in a
manner analogous to bringing such a suit against the
United States. Cf. 46 U.S.C. 741, et seq. In view
of Section 1609 of the bill, Section 1605 (b) is
designed to avoid arrests of vessels or cargo of
a foreign state to commence a suit. Instead, as
provided in paragraph (1), a copy of the summons
and complaint must be served either on the master
or other person having possession of the vessel and
cargo against either of which the maritime lien
is asserted, or on their agent (such as the second
in command of the ship). If, however, the vessel
or its cargo is arrested or attached, the plaintiff
will lose his in personam remedy and the foreign
state will be entitled to immunity -- except in the
rare case where the plaintiff was unaware that the
vessel or cargo of a foreign state was involved.
This would be a rare case because the flag of the
vessel, the circumstances giving rise to the
maritime lien, or the information contained in ship
registries kept in ports throughout the United States
-18-
should make known the ownership of the vessel in
question, if not the cargo. If, however, the vessel
or cargo is mistakenly arrested, such arrest or
attachment must, under Section 1609, be immediately
dissolved when the foreign state brings to the
court's attention its interest in the vessel or
cargo and, hence, its right to immunity from arrest.
Under paragraph (2), the plaintiff must also
be able to prove that the procedures for service of
process under Section 1608 (a) or (b) have commenced --
for example, that the clerk of the court has mailed
the requisite copies of the summons and complaint,
etc. The plaintiff need not show that service has
actually been made under Section 1608 (c). The
reason for this second requirement is to help make
certain that the foreign state concerned receives
prompt and actual notice of the institution of a
suit in admiralty in the United States, even if the
copies served on the master of the vessel should
fail to reach the foreign state.
(c) Scope of Liability When Immunity is not
Accorded. Section 1605 (c) makes clear that if the
foreign state, political subdivision, agency or
instrumentality is not entitled to immunity from
jurisdiction, liability exists as it would for a
private party under like circumstances. However,
the tort liability of a foreign state itself (but
not of a political subdivision, agency or instru-
mentality of a foreign state) does not extend to
interest prior to judgment or to punitive damages.
Under current international practice, punitive
damages are usually not assessed against foreign
states. See, 5 Hackworth, Digest of International
Law, 723-26 (1943) i Garcia-Amador, State
Responsibility,
94 Hague Recueil des Cours 365,
476-81 (1958) This subsection is based upon
28 U.S.C. 2674, which places similar limitations
on the liability of the United States Government
in tort.
-19-
Section 1606. Claims Involving the Public Debt.
Section 1606 provides for the immunity of a
foreign state itself (as opposed to its political
subdivisions, agencies or instrumentalities) in
cases relating to the public debt of the foreign
state.
Subsection (b) relates to the immunity of a
foreign state with respect to debt obligations
incurred for general governmental purposes and
backed by the full faith and credit of the foreign
state. Such immunity was recognized in dictum in
Victory Transport, Inc. V. Comisaria General de
Abastecimientos y Transportes, 336 F.2d 354 (2nd Cir.),
cert. denied, 381 U.S. 934 (1964). Where the under-
writers of such securities regard immunity as
detrimental to the success of the issue, the foreign
government may surrender its immunity by express
waiver.
Section 1606 (b) embodies the generally accepted
view that the immunity of the central government of
a state for public debts is not shared by its sub-
ordinate political entities or agencies or instru-
mentalities of the foreign state. Immunity with
respect to the public debt of political subdivisions,
agencies or instrumentalities would be governed by
other provisions of the bill, such as Section 1605
(a) (2). Thus, in cases where an agency or instru-
mentality, such as a central bank, incurs an
indebtedness for general governmental purposes
which constitutes an obligation backed by the
full faith and credit of the foreign state, Section
1606 (b) would apply only to the obligation of the
foreign state and not to that of the agency or
instrumentality.
-20-
Section 1606 (b) (1) provides for explicit waivers
of immunity in public debt cases. The waiver must be
that of the foreign state. Where the debt obligation
is incurred through an agency or instrumentality of
the foreign state, a waiver from the agency or
instrumentality would be deemed to be a waiver of the
foreign state only where the waiver is made in the
name of the foreign state. Section 1606 (b) (2)
preserves any remedies under the Federal Securities
Laws applicable to foreign states. In applying
Section 1606 (b), courts will have to determine whether
a debt obligation is for general governmental purposes
or for a specific governmental or other purpose.
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-21-
Section 1607. Counterclaims.
Section 1607 applies to counterclaims against
a foreign state which brings an action or intervenes
in an action in a federal or state court. It would
deny immunity in three situations. First, immunity
would be denied as to any counterclaim for which
the foreign state would not be entitled to immunity
under Sections 1605 and 1606, if the counterclaim
had been brought as a direct claim in a separate
action against the foreign state. This provision
is based upon Article I of the European Convention
on State Immunity.
Second, even if a foreign state would otherwise
be entitled to immunity under Sections 1604-1606, it
would not be immune from a counterclaim "arising out
of the transaction or occurrence that is the subject
matter of the claim of the foreign state." This is
the same terminology as that used in Rule 13 (a) of
the Federal Rules of Civil Procedure and is consistent
with Section 70 (2) (b), Restatement of the Law, Second,
Foreign Relations Law of the United States (1965).
Certainly, if a foreign state brings or intervenes in
an action based on a particular transaction or
occurrence, it should not obtain the benefits of
litigation before U.S. courts while avoiding any
legal liabilities claimed against it and arising
from that same transaction or occurrence.
Third, notwithstanding that the foreign state
may be immune under subsections (a) and (b), the
foreign state nevertheless would not be immune from
a counterclaim to the extent that the counterclaim
seeks relief neither exceeding in amount nor differ-
ing in kind from that sought by the foreign state.
Subsection (c) codifies the rule enunciated in
National Bank V. Republic of China, 348 U.S. 356 (1955).
-22-
Section 1608. Service of process; time to answer;
default.
Section 1608 sets forth the exclusive procedures
with respect to service of process on, the filing of
an answer or other responsive pleading by, and obtain-
ing a default judgment against a foreign state or its
political subdivisions, agencies or instrumentalities.
These procedural provisions are intended to fill a
void in existing federal and state law.
All of the provisions of Section 1608 are made
"subject to existing and future international agree-
ments to which the United States is a party.' As in
Sections 1604 and 1609, this language contemplates
the possibility of a future international convention
on sovereign immunity, and in particular on procedures
to be used in litigation against foreign states. An
"existing" international agreement which is applicable
is the Hague Convention on Service Abroad of Judicial
and Extrajudicial Documents, 20 UST 361, TIAS 6638
(1965).
(a) Service on Foreign States and Political
Subdivisions. Subsection (a) of Section 1608 sets
forth the exclusive procedures for service of process
on a foreign state, or political subdivision thereof,
but not on an agency or instrumentality of a foreign
state which is covered in subsection (b). There is
a hierarchy in the methods for serving process under
subsection (a). Paragraph (1) provides for service
in accordance with any special arrangement which
may have been agreed upon between a plaintiff and
the foreign state or political subdivision. If such
an arrangement exists, service must be made under
this method. The purpose of subsection (a) (1) is to
encourage potential plaintiffs and foreign states
to agree by contract for a procedure on service of
process.
If no special arrangement exists, subsection (a)
(2) provides two alternative methods of service. The
first method, set forth in subparagraph (A), involves
the transmittal of "a letter rogatory or a request"
-23-
for ultimate service in a foreign country. This
method is currently provided under Rule 4 (i) (B),
F.R. Civ. P., for service on nonresident defendants.
The Department of State has the authority to transmit
letters rogatory from a court in the United States
to authorities in foreign countries, under 28 U.S.C.
1781 (a) (2). The transmittal of letters rogatory
or requests may also be governed by international
agreements such as the Hague Convention on Service
Abroad of Judicial and Extrajudicial Documents,
supra. Service under a letter rogatory or request
under such international agreements would be
"directed by an authority of the foreign state"
within the meaning of subparagraph (A).
The alternative method, set forth in Sub-
paragraph (B), is for service by mail on the foreign
minister or other official in charge of the foreign
affairs of the foreign state. This method is based
on Rule 4 (i) (D), F.R. Civ. P.
Subsection (a) (3) provides, as a method of last
resort, service through diplomatic channels. It is
applicable only if 60 days have elapsed since service
was initiated under any method provided in sub-
sections (a) (1) or (2) and if proof of service has
not been made.
However, the method for direct service through
diplomatic channels cannot be resorted to in every
case. One situation where it is available is where
the claim is against a foreign state arising from
an act of a diplomatic or consular representative
of a foreign state. Such acts might include the
entering into a contract to construct an embassy or
a consulate, or a traffic accident caused by a
diplomatic or consular representative acting within
the scope of his employment for which the foreign
state is liable under the doctrine of respondent
superior. Not included are personal claims against
diplomatic or consular representatives as individuals,
which again are not covered by this statute.
The only other situations where this method of
direct service through diplomatic channels may be
resorted to are set forth in subparagraphs (B) and
(C) of subsection (a) (3). A list maintained by the
Secretary of State and published in the Federal
Register shall be conclusive evidence of whether a
-24-
foreign state may be subject to service through
diplomatic channels under subparagraphs (B) or
(C).
In those cases where direct service may be
made through diplomatic channels, the transmittal
of a copy of the summons and complaint with trans-
lation by diplomatic note will in itself constitute
service. This is to be distinguished from the
transmittal of a letter rogatory by the Department
of State, which is simply an administrative step
leading to the ultimate service in a foreign country
under the direction of a foreign authority, usually
a foreign court.
(b) Service on Agencies or Instrumentalities.
Subsection (b) of Section 1608 provides the methods
under which service shall be made upon an agency or
instrumentality of a foreign state, as defined in
Section 1603 (b). Again, service must always be
made in accordance with any special arrangement for
service between a plaintiff and the agency or
instrumentality. If no such arrangement exists,
then service must be made under subsection (b) (2)
which provides for service upon officers, or managing,
general or appointed agents in the United States of
the agency or instrumentality.
If there is no special arrangement and if the
agency or instrumentality has no representative in
the United States, service may be made under one
of the three methods provided in subsection (b) (3).
The first two of these methods, provided in sub-
paragraphs (A) and (B), are identical to methods
applicable to service on a foreign state or political
subdivision under subsection (a) (2).
The third method, in subparagraph (C), authorizes
a court to fashion a method of service, for example
under Rule 83 F.R. Civ. P., provided the method is
"consistent with the law of the place where service
is to be made." This latter language takes into
account the fact that the laws of foreign countries
-25-
may prohibit the service in their country of judicial
documents by process servers from the United States.
It is contemplated that no court will direct service
upon a foreign state by appointing someone to make
a physical attempt at service abroad, unless it is
clearly consistent with the law of the foreign
jurisdiction where service is to be attempted. It
is also contemplated that the courts will not direct
service in the United States upon diplomatic
representatives, Hellenic Lines Ltd. V. Moore,
345 F.2d 978 (D.C. Cir. 1965), or upon consular
representatives, Oster V. Dominion of Canada, 144 F.
Supp. 746 (N.D.N.Y. 1956), aff'd 238 F.2d 400
(2d Cir).
(c) When Service is Made. Subsection (c) of
Section 1608 establishes the time when service shall
be deemed to have been made under each of the methods
provided in subsections (a) and (b).
(d) Time to Answer or Reply. Subsection (d)
of Section 1608 gives each foreign state, political
subdivision thereof or agency or instrumentality of
a foreign state or political subdivision up to 60
days from the time service is deemed to have been
made in which to answer, file a responsive pleading
or other reply to a pleading or counterclaim. This
corresponds to similar provisions applicable in
suits against the United States or its officers or
agencies. Rule 12 (a), F.R. Civ. P.
(e) Default Judgments. Subsection (e) of
Section 1608 provides that no default judgment may
be entered against a foreign state, or its political
subdivisions, agencies or instrumentalities, "unless
the claimant establishes his claim or right to relief
by evidence satisfactory to the court." This is the
same requirement applicable to default judgments
against the United States Government under Rule 55 (e),
F.R. Civ. P. In determining whether the claimant has
established his claim or right to relief, it is
expected that courts will take into account the extent
to which the plaintiff's case depends on appropriate
-26-
discovery against the foreign state. Once the
default judgment is entered, notice of such
judgment must be sent in the manner prescribed
for service of process in Sections 1608 (a) or
(b).
Special note should be made of two means which
are currently in use in attempting to commence
litigation against a foreign state. First, the
current practice of attempting to commence a suit
by attachment of a foreign state's property would
be prohibited under Section 1609 in the bill,
because of foreign relations considerations and
because such attachments are rendered unnecessary
by the liberal service and jurisdictional provisions
of the bill. See the analysis to Section 1609.
A second means, of doubtful validity, involves
the mailing of a copy of the summons and complaint
to a diplomatic mission of the foreign state.
Section 1608 precludes this method so as to avoid
questions of inconsistency with Section 1 of
Article 22 of the Vienna Convention on Diplomatic
Relations, 23 UST 3227, TIAS 7502 (1961), which
entered into force in the United States on
December 13, 1972. Subsequent to the introduction
of S. 566 and H.R. 3493, 93rd Cong. 1st Sess.,
several foreign governments brought to the attention
of the Department of State that the drafters of the
Vienna Convention had construed Article 22 as
prohibiting the service of any process or writ,
"even by post, within the premises of a diplomatic
mission. The United States has formally acknow-
ledged this view. See 71 Dept. of State Bull. 458-59
(1974). Service on an embassy by mail would be
precluded under this bill.
-27-
Section 1609. Immunity from Attachment and Execution
of Property of a Foreign State.
As in the case of Section 1604 of the bill
with respect to jurisdiction, Section 1609 states
a general proposition that the property of a foreign
state, as defined in Section 1603 (a), is immune from
attachment and from execution, and then exceptions
to this proposition are carved out in Sections 1610
and 1611. Here, it should be pointed out that
neither Section 1610 nor 1611 would permit an attach-
ment for the purpose of obtaining jurisdiction over
a foreign state or its property. For this reason,
Section 1609 has the effect of precluding attachments
as a means for commencing a lawsuit.
Attachment of foreign government property for
jurisdictional purposes has been recognized "where
under international law a foreign government is not
immune from suit" and where the property in the
United States is commercial in nature. Weilamann V.
Chase Manhattan Bank, 21 Misc. 2d 1086, 192 N.Y.S.
2d 469 (Sup. Ct. N.Y. 1959). Even in such cases,
however, it has been recognized that property
attached for jurisdictional purposes cannot be
retained to satisfy a judgment because, under current
practice, the property of a foreign sovereign is
immune from execution.
Attachments for jurisdictional purposes have
been criticized as involving United States courts
in litigation not involving any significant U.S.
interest or jurisdictional contacts, apart from
the fortuitous presence of property in the juris-
diction. Such cases frequently require the
application of foreign law to events which occur
entirely abroad.
Such attachments can also give rise to serious
friction in the United States foreign relations. In
some cases, plaintiffs obtain numerous attachments
over a variety of foreign government assets found in
various parts of the United States. This shotgun
approach has caused significant irritation to many
foreign governments.
-28-
At the same time, one of the fundamental
purposes of this bill is to provide a long-arm
statute that makes attachment for jurisdictional
purposes unnecessary in cases where there is a
nexus between the claim and the United States.
Claimants will clearly benefit from the expanded
methods under the bill for service of process on
a foreign state (Section 1608), as well as from
the certainty that such service will, under
Section 1330 (b) of the bill, confer personal
jurisdiction over a foreign state in federal courts
as to every claim for which the foreign state is
not entitled to immunity. The elimination of
attachment as a vehicle for commencing a lawsuit
will ease the conduct of foreign relations by
the United States and help eliminate the necessity
for determinations of claims of sovereign immunity
by the State Department.
Section 1610. Exceptions to Immunity from Attach-
ment or Execution.
Section 1610 sets forth circumstances under
which the property of a foreign state is not immune
from attachment or execution to satisfy a judgment.
Though the enforcement of judgments against foreign
state property remains a somewhat controversial
subject in international law, there is a marked
trend toward limiting the immunity from execution.
A number of treaties of friendship, commerce,
and navigation concluded by the United States permit
execution of judgments against foreign publicly-
owned or controlled enterprises (e.g., Treaty with
Japan, April 2, 1953, Art. 18(2), 4 UST 2063, TIAS
2863). The widely ratified Brussels Convention for
the Unification of Certain Rules relating to the
Immunity of State-Owned Vessels, April 10, 1926,
196 L.N.T.S. 199, allows execution of judgments
against public vessels engaged in commercial service
in the same way as against privately owned vessels.
-29-
Although not a party to this treaty, the United
States follows a policy of not claiming immunity
for its publicly owned merchant vessels, both
domestically, 46 U.S.C. 742, 781, and abroad,
46 U.S.C. 747; 2 Hackworth, Digest of International
Law, 438-39 (1941). Articles 20 and 21 of the
Geneva Convention on the Territorial Sea and the
Contiguous Zone, April 29, 1958 (15 UST 1606,
TIAS 5639), to which the United States is a party,
recognize the liability to execution under
appropriate circumstances of state-owned vessels
used in commercial service.
However, the traditional view in the United
States concerning execution has been that the
property of foreign states is absolutely immune
from execution. Dexter and Carpenter, Inc. V.
Kunglig Jarnvagsstyrelsen, 43 F. 2d 705 (2d Cir.
1930). Even after the "Tate Letter" of 1952, this
continued to be the position of the Department of
State and of the courts. See, Weilamann V. Chase
Manhattan Bank, 21 Misc. 2d 1086, 192 N.Y.S.2d
469, 473 (Sup. Ct. N.Y. 1959). Sections 1610 (a)
and (b) are intended to modify this rule by partially
lowering the barrier of immunity to execution, so as
to make this immunity conform more closely with the
provisions on jurisdictional immunity in the bill.
(a) Execution Against Property of Foreign
States. Section 1610 (a) relates to execution against
property of a foreign state, including a political
subdivision, agency or instrumentality of a foreign
state. The term "attachment in aid of execution"
is intended to include attachments, garnishments and
supplemental proceedings available under applicable
federal or state law to obtain satisfaction of a
judgment. See Rule 69, F.R. Civ. P. The property
in question must be used for a commercial activity
in the United States. If so, attachment in aid of
execution, and execution, upon judgments entered
by federal or state courts against the foreign state
would be permitted in any of the circumstances set
forth in paragraphs (1) - (5) of Section 1610 (a).
-30-
Paragraph (1) relates to explicit and implied
waivers, and is governed by the same principles
that apply to waivers of immunity from jurisdiction
under Section 1605 (a) (1) of the bill. A foreign
state may have waived its immunity from execution
inter alia by the provisions of a treaty, a contract,
an official statement, or certain steps taken by the
foreign state in the proceedings leading to judgment
or to execution. As in Section 1605 (a) (1), a waiver
on behalf of an agency or instrumentality of a
foreign state may be made either by the agency or
instrumentality or by the foreign state itself.
Paragraph (2) of Section 1610 (a) denies
immunity from execution against property used by
a foreign state for a commercial activity in the
United States, provided that the commercial activity
gave rise to the claim upon which the judgment is
based. Included would be commercial activities
encompassed by Section 1605 (a) (2). The provision
also includes a commercial activity giving rise to
a claim with respect to which the foreign state has
waived immunity under Sections 1605 (a) (1). In
addition, it includes a commercial activity which
gave rise to a maritime lien with respect to which
an admiralty suit was brought under Section 1605 (b)
One could, of course, execute against commercial
property other than a vessel or cargo which is the
subject of a suit under Section 1605 (b), provided
that the property was used in the same commercial
activity upon which the maritime lien was based.
The language "is or was used" in paragraph (2)
contemplates a situation where property may be
transferred from the commercial activity which is
the subject of the suit in an effort to avoid the
process of the court. This language, however,
does not bear on the question of whether particular
property is to be deemed property of the entity
against which the judgment was obtained. The
courts will have to determine whether property in
the custody of an agency or instrumentality is
property of the agency or instrumentality, whether
-31-
property held by one agency should be deemed to
be property of another, whether property held by
an agency is property of the foreign state. See
Prelude Corp. V. Owners of F/V Atlantic, 1971 A.M.C.
2651 (N.D. Calif.) ; American Hawaiian Ventures V.
M.V.J. Latuharhary, 257 F. Supp. 622, 626 (D.N.J.
1966).
Paragraph (3) would deny immunity from
execution against property of a foreign state which
is used for a commercial activity in the United
States and which has been taken in violation of
international law or has been exchanged for property
taken in violation of international law. See the
analysis to Section 1605 (a) (3).
Paragraph (4) would deny immunity from execution
against property of a foreign state which is used for
a commercial activity in the United States and is
either acquired by succession or gift or is immovable.
Specifically exempted are diplomatic and consular
missions and the residence of the chiefs of such
missions. This exemption applies to all of the
situations encompassed by Sections 1610 (a) and (b)
embassies and related buildings could not be deemed
to be property used for a "commercial" activity
as required by Section 1610 (a) ; also, since such
buildings are those of the foreign state itself, they
could not be property of an agency or instrumentality
engaged in a commercial activity in the United States
within the meaning of Section 1610 (b).
Paragraph (5) of Section 1610 (a) would deny
immunity with respect to obligations owed to a
foreign state under a policy of liability insurance.
Such obligations would after judgment be treated as
property of the foreign state subject to garnish-
ment or related remedies in aid or in place of
execution. The availability of such remedies would,
of course, be governed by applicable state or federal
law. Paragraph (5) is intended to facilitate
recovery by individuals who may be injured in
accidents, including those involving vehicles operated
-32-
by a foreign state or by its officials or employees
acting within the scope of their authority.
(b) Additional Execution Against Agencies
and Instrumentalities Engaged in Commercial Activity
in the United States. Section 1610 (b) provides for
execution against the property of agencies or
instrumentalities of a foreign state in circumstances
additional to those provided in Section 1610 (a).
However, the agency or instrumentality must be
engaged in a commercial activity in the United States.
If so, the plaintiff may obtain an attachment in aid
of execution or execution against any property,
commercial and noncommercial, of the agency or
instrumentality, but only in the circumstances set
forth in paragraphs (1) and (2).
Paragraph (1) denies immunity from execution
against any property of an agency or instrumentality
engaged in a commercial activity in the United States,
where the agency or instrumentality has waived its
immunity from execution. See the analysis to
paragraph (1) of Section 1610 (a).
Paragraph (2) of Section 1610 (b) denies
immunity from execution against any property of
an agency or instrumentality engaged in a commercial
activity in the United States in order to satisfy
a judgment relating to a claim for which the agency
or instrumentality is not immune by virtue of
Section 1605 (a) (2), (3) or (5), or 1605 (b) Property
will be subject to execution irrespective of whether
the property was used for the same commercial or
other activity upon which the claim giving rise to
the judgment was based.
Section 1610 (b) will not permit execution
against the property of one agency or instrumentality
to satisfy a judgment against another, unrelated
agency or instrumentality. See Prelude Corp. V.
Owners of F/V Atlantic, 1941 A.M.C. 2651 (N.D.
Calif.). There are compelling reasons for this.
-33-
If United States law did not respect the separate
juridical identities of different agencies or
instrumentalities, it might encourage foreign
jurisdictions to disregard the juridical divisions
between different U.S. corporations or between a
U.S. corporation and its independent subsidiary.
However, a court might find that property held
by one agency is really the property of another.
See the analysis to Section 1610 (a) (2).
(c) Necessity of Court Order Following
Reasonable Notice. Section 1610 (c) prohibits
attachment or execution under Sections 1610 (a)
and (b) unless the court has issued an order for
such attachment and execution. In some jurisdic-
tions in the United States, attachment and
execution to satisfy a judgment may be had simply
by applying to a clerk or to a local sheriff.
This would not afford sufficient protection to a
foreign state. This subsection contemplates that
the courts will exercise their discretion in
permitting execution. Prior to ordering attachment
and execution, the court must determine that a
reasonable period of time has elapsed following
the entry of judgment, or in cases of a default
judgment, since notice of the judgment was given
to the foreign state under Section 1608 (e). In
determining whether the period has been reasonable,
the courts should take into account procedures,
including legislation, that may be necessary for
payment of a judgment by a foreign state, which may
take several months. Courts should also take into
account representations by the foreign state of
steps being taken to satisfy the judgment.
(d) Attachments Upon Explicit Waiver to
Secure Satisfaction of a Judgment. Section 1610 (d)
relates to attachment against the property of a
foreign state, or of a political subdivision, agency
or instrumentality of a foreign state, prior to
the entry of judgment or prior to the lapse of
the "reasonable period of time" required under
Section 1610 (c). Immunity from attachment will be
-34-
denied only if the foreign state, political
subdivision, agency or instrumentality has
explicitly waived its immunity from attachment
prior to judgment, and only if the purpose of the
attachment is to secure satisfaction of a judg-
ment that has been or may ultimately be entered
against the foreign state, etc., in the same
action. This subsection provides, in cases
where there has been an explicit waiver, a
provisional remedy to prevent assets from being
dissipated or removed from the jurisdiction in
order to frustrate satisfaction of a judgment.
Section 1611. Certain Types of Property Immune
from Execution.
Section 1611 exempts certain types of property
from the immunity provisions of Section 1610
relating to attachment and execution.
(a) Property Held by International Organiza-
tions. Section 1611 (a) precludes attachment and
execution against funds and other property of
certain international organizations. The purpose
of this subsection is to permit international
organizations designated by the President pursuant
to the International Organizations Immunity Act,
22 U.S.C. 288 et seq., to carry out their functions
from their offices located in the United States
without hinderance by private claimants seeking
to attach the payment of funds to a foreign state;
such attachments would also violate the immunities
accorded to such international institutions. See
also Art. 9, Section 3 of the Articles of Agreement
of the International Monetary Fund. International
organizations covered by this provision would
include, inter alia, the International Monetary
Fund and the World Bank. The reference to
"international organizations" in this subsection
is not intended to restrict any immunity accorded
to such international organizations under any other
law or international agreement.
-35-
(b) Central Bank Funds and Military Property.
Section 1611 (b) (1) provides for the immunity of
central bank funds from attachment or execution.
It applies to funds of a foreign central bank or
monetary authority which are deposited in the
United States and "held" for the bank's or authority's
"own account" -- i.e., funds used or held in
connection with central banking activities, as
distinguished from funds used solely to finance the
commercial transactions of other entities or of
foreign states. If execution could be levied on
such funds without an explicit waiver, deposit of
foreign funds in the United States might be dis-
couraged. Moreover, execution against the reserves
of foreign states could cause significant foreign
relations problems.
Section 1611 (b) (2) provides immunity from attach-
ment and execution for property which is, or is
intended to be, used in connection with a military
activity and which fulfills either of two conditions:
the property is either (A) of a military character or
(B) under the control of a military authority or
defense agency. Under the first condition, property
is of a military character if it consists of equip-
ment in the broad sense -- such as weapons,
ammunition, military transport, warships, tanks,
communications equipment. Both the character and
the function of the property must be military. The
purpose of this condition is to avoid frustration
of United States foreign policy in connection with
purchases of military equipment and supplies in the
United States by foreign governments.
The second condition is intended to protect
other military property, such as food, clothing,
fuel and office equipment which, although not of
a military character, is essential to military
-36-
(d)
operations. "Control" is intended to include
authority over disposition and use in addition
to physical control, and a "defense agency" is Iqqs II
intended to include civilian defense organizations
comparable to the Defense Supply Agency in the
United States. Each condition is subject to the
overall condition that property will be immune
only if its present or future use is military
(e.g., surplus military equipment withdrawn [sionemmoo
from military use would not be immune). Both прівтої
conditions will avoid the possibility that a dous
foreign state might permit execution on military
property of the United States abroad under a
reciprocal application of the Act.
30
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yusjillm of Isignesse at yustillm 6
-37-
SEC 5. Venue.
This section amends 28 U.S.C. § 1391, which
deals with venue generally. Under the new sub-
section (f), there are four express provisions for
venue in civil actions brought against foreign states,
political subdivisions or their agencies or instru-
mentalities.
(1) The action may be brought in the judicial
district where "a substantial part of the events or
omissions giving rise to the claim occurred.' This
provision is analogous to 28 U.S.C. § 1391 (e), which
allows an action against the United States to be
brought, inter alia, in any judicial district in
which "the cause of action arose. The test adopted,
however, is the newer test recommended by the Ameri-
can Law Institute and incorporated in S. 1876,
92d Cong., 1st Sess., which does not imply that there
is only one such district applicable in each case.
In cases where property or rights in property are
involved, the action may be brought in the judicial
district in which "a substantial part of the property
that is the subject of the action is situated." No
hardship will be caused to the foreign state if it is
subject to suit where it has chosen to place the prop-
erty that gives rise to the dispute.
(2) If the action is a suit in admiralty to
enforce a maritime lien against a vessel or a cargo
of a foreign state and if the action is brought under
the new Section 1605 (b) in this bill, the action may
be brought in the judicial district in which the
vessel or cargo is situated at the time notice is
served pursuant to Section 1605 (b) (1).
(3) If the action is brought against an agency
or instrumentality of a foreign state, as defined in
the new Section 1603 (b) in the bill, it may be brought
in the judicial district where the agency or instru-
mentality is licensed to do business or is doing
business. This provision is based on 28 U.S.C.
§ 1391 (c).
-38-
(4) If the action is brought against a foreign
state or political subdivision, it may be brought in
the United States District Court for the District of
Columbia. It is in the District of Columbia that
foreign states have diplomatic representatives and
where it may be easiest for them to defend. New
subsection (f) would, of course, not apply to
entities that are owned by a foreign state and are
also citizens of a state of the United States as
defined in 28 U.S.C.
1332 (c) and (d). For purposes
if this bill, such entities are not agencies or
instrumentalities of a foreign state. See the analysis
to Section 1603 (b).
As with other provisions in 28 U.S.C. 1391,
venue under the new subsection (f) could be waived
by a foreign state, such as by failing to object to
improper venue in a timely manner. See Rule 12 (h),
F.R. Civ. P.
SEC. 6. Removal of Cases from State Courts.
The bill adds a new provision to 28 U.S.C.
1441 to provide for removal to a federal district
court of civil actions brought in the courts of
the state against a foreign state or a political
subdivision, agency or instrumentality of a foreign
state. In view of the potential sensitivity of
actions against foreign states and the importance
of developing a uniform body of law in this area,
it is important to give foreign states clear
authority to remove to a federal forum actions
brought against them in the state courts. New
subsection (d) of Section 1441 permits the removal
of any such action at the discretion of the foreign
state, even if there are multiple defendants and
some of these defendants desire not to remove the
action or are citizens of the state in which the
action has been brought.
-39-
As with other removal provisions, a petition
for removal must be filed with the appropriate
district court in a timely manner. 28 U.S.C. 1446.
However, in view of the 60 day period provided
in Section 1608 (c) in the bill and in view of the
bill's preference that actions involving foreign
states be tried in federal courts, the time
limitations for filing a petition of removal
under 28 U.S.C. 1446 may be extended "at any time"
for good cause shown.
Upon removal, the action would be heard and tried
by the appropriate district court sitting without
a jury. Cf. 28 U.S.C. 2402, precluding jury trials
in suits against the United States. Thus, one
effect of removing an action under the new
Section 1441 (d) will be to extinguish a demand
for a jury trial made in the state court. Cf.
Rule 81 (c), F.R. Civ. P. Because the judicial power
of the United States specifically encompasses actions
"between a State, or the Citizens thereof, and
foreign States" (U.S. Constitution, Art. III,
Sec. 2, Cl. 1), this preemption of state court
procedures in cases involving foreign sovereigns is
clearly constitutional.
This section, again, would not apply to entities
owned by a foreign state which are citizens of a
state of the United States as defined in 28 U.S.C.
1332 (c) and (d), or created under the laws of a
third country.
SEC. 7. Severability of Provisions
This action provides that if a portion of the
Act of any application of the Act should be found
invalid for any reason, such invalidity would not
affect any other provision or application of the Act.
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detailed provisions to all foreign states. boop
to give adequate notice of the Act and its 8S Tebau
law. A 90-day period is deemed necessary in order
date of the Act shall be 90 days after it becomes
pt
This section establishes that the effective at
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A BILL
пріэтой B 19V0 noidolbaint 16008199 (d)"
To define the jurisdiction of United States courts in J632
suits against foreign states, the circumstances in doldw
which foreign states are immune from suit and in idoeadus
which execution may not be levied on their property, ebsm
and for other purposes. 10 assoging TOT (b)"
Isnosing Jon 2906 пріэной 6 vd 9005169qqs
Be it enacted by the Senate and House of
sentatives of the United States of America in Congress
assembled,
bas i".effit airs to roai-20a1 ni
That this Act may be cited as the "Foreign Sovereign
Immunities Act of 1975."
- 3603
-2-
SEC. 2 (a) That chapter 85 of title 28, United
States Code, is amended by inserting immediately
before section 1331 the following new section:
"$1330. Actions against foreign states
" (a) The district courts shall have
original jurisdiction without regard to amount in
controversy of any nonjury civil action against a
foreign state as defined in section 1603 (a) of this
title as to any claim for relief in personam with
respect to which the foreign state is not entitled
to immunity either under sections 1605-1607 of this
title or under any applicable international agreement.
JIIS
" (b) Personal jurisdiction over a foreign
state shall exist as to every claim for relief over
which the district courts have jurisdiction under
subsection (a) where service of process has been
made under section 1608 of this title.
" (c) For purposes of subsection (b) an
appearance by a foreign state does not confer personal
jurisdiction with respect to any claim for relief not
arising out of any transaction or occurrence enumerated
in sections 1605-1607 of this title." and
(b) by inserting in the chapter analysis of
that chapter before -
-3-
"1331. Federal question; amount in controversy; costs." "
the following new item: nixime vd bebnems at ,sboo 893658
"1330. Actions against foreign states. " . Jadua bas (E) bas
enesidio bris 83638 B to anesitio (S) II
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bas asdate to enesitio (E) =
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bns testing Isnoltibbs
moldoes ni beatheb ,SISTS пріэтой B (4)"
to enesitio bris 111301619 as aids to
insuratib 10 TO 2293 S
-4- -
SEC. 3. That section 1332 of title 28, United
States Code, is amended by striking subsections (a) (2)
and (3) and substituting in their place the following:
" (2) citizens of a State and citizens
or subjects of a foreign state;
" (3) citizens of different States and
in which citizens or subjects of a foreign state are
additional parties; and
" (4) a foreign state, defined in section
1603 (a) of this title, as plaintiff and citizens of
a State or of different States."
-5-
to
SEC. 4 (a) That title 28, United States Code, is
amended by inserting after chapter 95 the following
new chapter: to
"Chapter 97. be JURISDICTIONAL IMMUNITIES OF
FOREIGN STATES
"Sec.
"1602. Findings and declaration of purpose.
"1603.
Definitions.
to
"1604. Immunity of a foreign state from jurisdiction.
"1605. General exceptions to the jurisdictional
immunity of a foreign state. 10
"1606. Claims involving the public debt.
divoleoned
"1607.
Counterclaims.
to
"1608. Service of process; time to answer; default.
"1609. Immunity from attachment and execution of
property of a foreign state.
"1610. Exceptions to the immunity from attachment or
execution.
"1611. Certain types of property immune from execution.
-6-
"$1602. Findings and declaration of purpose
"The Congress finds that the determination by
8
United States courts of the claims of foreign states
to immunity from the jurisdiction of such courts
would serve the interests of justice and would
protect the rights of both foreign states and
litigants in United States courts. Under inter-
national law, states are not immune from the
jursidiction of foreign courts in so far as their
commercial activities are concerned, and their
commercial property may be levied upon for the
satisfaction of judgments rendered against them in
connection with their commercial activities. Claims
of foreign states to immunity should henceforth be
decided by courts of the United States and of the
States in conformity with the principles set forth
in this chapter.
B
-7-
"§ 1603. Definitions
"For purposes of this chapter -
" (a) a 'foreign state', except as used in
-
sections 1606 and 1608 of this title, includes a
political subdivision of a foreign state or an agency
or instrumentality of a foreign state as defined in
subsection (b).
" (b) an 'agency and instrumentality of a foreign
state' means any entity
" (1) which is a separate legal person,
corporate or otherwise, and
" (2) which is an organ of a foreign state
or political subdivision thereof, or
a majority of whose shares or other
ownership interest is owned by a
foreign state or political subdivision
thereof, and
" (3) which is neither a citizen of a State
of the United States as defined in
sections 1332 (c) and (d) of this title,
nor created under the laws of any third
country.
-8-
" (c) the 'United States' includes all territory
:
and waters, continental or insular, subject to the 107"
jursidiction of the United States.
5
(s)
ni
" (d) a 'commercial activity' means either a
5
regular course of commercial conduct or a particular
commercial transaction or act. The commercial character
ni
of an activity shall be determined by reference to
the nature of the course of conduct or particular
5
to
transaction or act, rather than by reference to its
purpose.
6 (I)"
" (e) a 'commercial activity carried on in the
United States by a foreign state' means commercial
S
10
activity carried on by such state and having substantial
TO
contact with the United States.
TO B
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B to B al (E)"
ni beniteb 85 befinu edd to
ains 10 (b) bas (5) SEEI
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-9- -01-
2031
"§ 1604. Immunity of a foreign state from jurisdiction
"Subject to existing and future international
agreements to which the United States is a party, a
edd
foreign state shall be immune from the jurisdiction
add
10
of the courts of the United States and of the States
except as provided in sections 1605-1607 of this chapter.
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1293638 betinU
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bas suasi ni 915 wsi to noissiolv
dous 103 yns 10 36ds
-10-
"§ 1605. General exceptions to the jurisdictional
immunity of a foreign state
" (a) A foreign state shall not be immune from
S
the jurisdiction of courts of the United States or
of the States in any case
-
to
" (1) 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 effect
except in accordance with the terms of the
waiver;
" (2) in which the action is based upon a
commercial activity carried on in the United
States by the foreign state; or upon an act
performed in the United States in connection
with a commercial activity of the foreign state
elsewhere; or upon an act outside the territory
of the United States in connection with a
commercial activity of the foreign state else-
where and that act causes a direct effect in the
United States;
" (3) in which rights in property taken in
violation of international law are in issue and
that property or any property exchanged for such
-11-
property is present in the United States in
connection with a commercial activity carried
on in the United States by the foreign state;
or that property or any property exchanged for
such property is owned or operated by an agency
or instrumentality of the foreign state and
that agency or instrumentality is engaged in
a commercial activity in the United States;
" (4) in which rights in property in the
United States acquired by succession or gift
or rights in immovable property situated in the
United States are in issue; or
" (5) not otherwise encompassed in paragraph
(2) above, in which money damages are sought
against a foreign state for personal injury or
death, or damage to or loss of peroperty, occur-
ring in the United States and caused by the
tortious act or omission of that foreign state or
of any official or employee of that foreign state
while acting within the scope of his office or
employment; except this paragraph shall not
apply to
=
(A) any claim based upon the exercise
or performance or the failure to exercise
-12-
or perform a discretionary function
regardless of whether the discretion be
abused, or
" (B) any claim arising out of malicious
prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference
with contract rights.
" (b) A foreign state shall not be immune from
the jurisdiction of the courts of the United States
in any case in which a suit in admiralty is brought
to enforce a maritime lien against a vessel or cargo
of the foreign state, which maritime lien is based
upon a commercial activity of the foreign state,
provided that
" (1) notice of the suit is given by service
of a copy of the summons and of the complaint to
the person, or his agent, having possession of
the vessel or cargo against which the maritime
lien is asserted; but such notice shall not be
deemed to have been served, nor may it thereafter
be served, if the vessel or cargo is arrested
pursuant to process obtained on behalf of the
party bringing the suit -- unless the party was
unaware that the vessel or cargo of a foreign
state was involved, in which event the service
-13-
of process of arrest shall be deemed to
constitute valid service of such notice; and
" (2) notice to the foreign state of the
commencement of suit as provided in section 1608
of this title is initiated within ten days of
the service of process as provided in subsection
(b) (1) of this section.
"Whenever notice is served under subsection (b) (1) of
this section, the maritime lien shall thereafter be
deemed to be an in personam claim against the foreign
state which at that time owns the vessel or cargo
involved; provided that a court may not award judgment
against the foreign state in an amount greater than the
value of the vessel or cargo upon which the maritime
lien arose, such value to be determined as of the
time notice is served under subsection (b) (1) of this
section.
" (c) As to any claim for relief with respect to
which a foreign state is not entitled to immunity under
this section or under sections 1606 or 1607 of this
chapter, the foreign state shall be liable in the same
manner and to the same extent as a private individual
under like circumstances; but a foreign state itself,
-14-
as distinguished from a political subdivision thereof
or from an agency or instrumentality of a foreign
state, shall not be liable in tort for interest prior
to judgment or for punitive damages;
to "If, however, in any case wherein death was
caused, the law of the place where the action or
omission occurred provides, or has been construed to
provide, for damages only punitive in nature, the
foreign state shall be liable for actual or compensatory
damages measured by the pecuniary injuries resulting
from such death which were incurred by the persons for
whose benefit the action was brought. bivorg ¡bevlovni
9dj nedd ns ni orig Janisps
emitimem doldw поди TO 9dj to enlsv
9dd to 85 bentmiedeb of 9UISV dows ,98016 neil
aids to (I) (d) noidosadive beviee at soldon emit
.notjose
of Josqser date islier IOT mislo YES of aA (5)"
I9bnu ythummt of before Jon at etate пріэтой S doinw
sins to roar 20 aoas тебли 10 notices aids
91158 only ni eldshl 9d lisda 93638 пріетой edd
Isobivibai edsving is 86 tastxe entea and of bas 19005m
6 exil
-15-
"§ 1606. Claims involving the public debt
" (a) For purposes of this section, a 'foreign
state' shall not include a political subdivision of
a foreign state or an agency or instrumentality of a
foreign state.
" (b) Notwithstanding the provisions of section
1605 of this chapter, a foreign state shall be immune
from the jurisdiction of the courts of the United
to
States and of the States in any case relating to
debt obligations incurred for general governmental
purposes unless
-
" (1) the foreign state has waived its
immunity explicitly, notwithstanding any
withdrawal of the waiver which the foreign
state may purport to effect except in accordance
with the terms of the waiver; or
" (2) the case arises under provisions codified
as sections 77a through 80b-21 of title 15, United
States Code, as amended, or any other statute
which may hereafter be administered by the United
States Securities and Exchange Commission.
-16-
-21-
"§ 1607. Counterclaims
"In any action brought by a foreign state, or
in which a foreign state intervenes, in a court of
the United States or of a State, the foreign state
as
shall not be accorded immunity with respect to any
B
counterclaim
" (a) for which a foreign state would not be
entitled to immunity under sections 1605 and 1606 0.00
of this chapter had such claim been brought in a most
separate action against the foreign state; or
" (b) arising out of the transaction or Ido
occurrence that is the subject matter of the claim
uq
of the foreign state; or (I)
" (c) to the extent that the counterclaim does
not seek relief exceeding in amount or differing
in kind from that sought by the foreign state.
TO to drive
belliboo anolaivorq add (S) "
21 10 IS-d08 anoidoes 26
yas TO , bebnems
benejainimba doirlw
.noleaimmo5
-17-
"1608. Service of process; time to answer; default
"Subject to existing and future international
agreements to which the United States is a party -
" (a) service in the courts of the United States
and of the States shall be made upon a foreign state or
political subdivision of a foreign state:
" (1) by delivering a copy of the summons
and of the complaint in accordance with any
special arrangement for service between the
plaintiff and the foreign state or political
subdivision; or
" (2) if no special arrangement exists,
and if service is reasonably calculated to give
actual notice,
" (A) by service of a copy of the
summons and of the complaint, together with
a translation into the official language of
the foreign state, as directed by an autho-
rity of the foreign state or of the political
subdivision in response to a letter rogatory
or request, or
" (B) by sending a copy of the summons
and of the complaint, together with a trans-
lation into the official language of the
-18-
foreign state, by any form of mail requiring
a signed receipt, to be addressed and dis-
patched by the clerk of the court to the
official in charge of the foreign affairs
(s)
of the foreign state which is, or whose
political subdivision is, named in the
complaint; or
"
(3) if proof of service is not made within
60 days after service has been initiated under
paragraphs (1) or (2) of this subsection, and
if
" (A) the claim for relief arises out
of an activity or act in the United States
11
of a diplomatic or consular representative
of the foreign state for which the foreign
state is not immune from jurisdiction under
section 1605 of this title, or
"
(B) the foreign state uses diplomatic
channels for service upon the United States
or any other foreign state, or
"
(C) the foreign state has not notified
the Secretary of State prior to the institu-
6
tion of the proceeding in question that it
prefers that service not be made through
diplomatic channels,
-19-
by sending two copies of the summons and of
the complaint, together with a translation
into the official language of the foreign
state, by any form of mail requiring a signed
receipt, to be addressed and dispatched by
the clerk of the court, to the Secretary of
State at Washington, District of Columbia, to
the attention of the Director of Special Consular
Services, and the Secretary shall send one copy
through diplomatic channels to the foreign state
and shall send a certified copy of the diplomatic
note to the clerk of the court in which the action
is pending. The Secretary shall maintain and
publish in the Federal Register a list of foreign
states upon which service may be made under
subparagraphs (B) and (C) of this paragraph, and
such list shall be conclusive for purposes of
subparagraphs (B) and (C);
" (b) service in the courts of the United States
and of the States shall be made upon an agency or
instrumentality of a foreign state:
" (1) by delivering a copy of the summons and
of the complaint in accordance with any special
arrangement for service between the plaintiff
and the agency or instrumentality; or
-20-
" (2) if no special arrangement exists, by
delivering a copy of the summons and of the
complaint to an officer, a managing or general
agent or to any other agent authorized by appoint-
ment or by law to receive service of process in
the United States; or
" (3) if service cannot be made under paragraphs
(1) or (2) of this subsection, and if service is
reasonably calculated to give actual notice,
" (A) by service of a copy of the summons
and of the complaint, together with a trans-
lation into the official language of the
foreign state, as directed by an authority
of the foreign state or of a political sub-
division in response to a letter rogatory
or request, or
" (B) by sending a copy of the summons
and of the complaint, together with a trans-
lation into the official language of the
foreign state, by any form of mail requiring
a signed receipt, to be addressed and dis-
patched by the clerk of the court to the
agency or instrumentality to be served, or
" (C) as directed by order of the court
consistent with the law of the place where
service is to be made;
-21-
" (c) for the purposes of this section, service of
process shall be deemed to have been made -
" (1) in the case of subsections (a) (1) and
(b) (1), when delivered in accordance with the
terms of the special arrangement;
" (2) in the case of subsections (a) (2) (A)
and (b) (3) (A), when delivered as directed by an
authority of the foreign state or political sub-
division;
"
(3) in the case of subsections (a) (2) (B)
and (b) (3) (B), when received abroad by mail, as
evidenced by the returned, signed receipt;
" (4) in the case of subsection (b) (2), when
delivered to an officer, managing or general agent
or appointed agent in the United States;
" (5) in the case of subsection (a) (3), when
sent through diplomatic channels, as evidenced
by a certified copy of the diplomatic note of
transmittal;
" (6) in the case of subsection (b) (3) (C),
when served as directed by order of the court.
" (d) in any action brought in a court of the
United States or of a State, a foreign state, a
political subdivision thereof, or an agency or
-22-IS-
instrumentality of a foreign state shall serve an
answer or other responsive pleading to the
or to a cross-claim, or a reply to a counterclaim,
within 60 days after the service of the pleading (d)
in which a claim is asserted; and to
" (e) no judgment by default shall be entered by
a court of the United States or of a State against a
foreign state, a political subdivision thereof, or an
agency or instrumentality of a foreign state, unless
the claimant establishes his claim or right to relief
by evidence satisfactory to the court. A copy of any
such default judgment shall be sent to the foreign
state or political subdivision in the manner prescribed
for service of process in this section. of berevifeb
betalogge TO
(E) (s) to at (2)
becausive ripuord Jmes
to ston to cob S yet
(0) (E) (d) notiosadus to ni (a)
COMER edd 10 sebio 86 bevise
oris to 11000 B mi adproxed Y/16 ni (5)
s 6 8 to TO beginD
10 TO [soluting
-23-
"§ 1609. Immunity from attachment and execution of 101
2"
property of a foreign state TO
"Subject to existing and future international
agreements to which the United States is a party, 5
the property in the United States of a foreign state been
shall be immune from attachment and from execution IIsde
except as provided in sections 1610 and 1611 of this 11 TO
chapter. 9919 19516 83638 5 to TO 893638 betinu odd to
- 31 ,JOA airlt to 9jsb
att beview and etsta пріэтой edd (1)"
nottubexe to 516 ni inemiosite moxt
yd TO yitioliqxe reddie notivoexe most 20
10 уль ,noissoliqmi
of froging YBM siste пріетой edd review add
to amied edd djiw ni dostle
TO , I9VIBW odj
add IOI beau BSW TO al edd (S) "
at mislo add doldw noqu
TO ,beasd
5 of notivoexe odd (E) II
need asd doldw ni atdpix
doldw TO wsi 20 noissiolv nt nexes
ni next not bepasioxe need and
TO ,W61 to
tremport s of assisier add (D)"
- nt ejdgin pridaildades
-24-
"§ 1610. Exceptions to the immunity from attachment
or execution
" (a) The property in the United States of a foreign
state, as defined in section 1603 (a) of this chapter,
used for a commercial activity in the United States,
shall not be immune from attachment in aid of execution,
or from execution, upon a judgment entered by a court
of the United States or of a State after the effective
date of this Act, if -
"(1) the foreign state has waived its
immunity from attachment in aid of execution
or from execution either explicitly or by
implication, notwithstanding any withdrawal of
the waiver the foreign state may purport to
effect except in accordance with the terms of
the waiver, or
" (2) the property is or was used for the
commercial activity upon which the claim is
based, or
" (3) the execution relates to a judgment
establishing rights in property which has been
taken in violation of international law or which
has been exchanged for property taken in violation
of international law, or
" (4) the execution relates to a judgment
establishing rights in property -
-25-
" (A) which is acquired by succession
or gift, or
" (B) which is immovable and situated
in the United States, provided such property
is not used for purposes of maintaining a
diplomatic or consular mission or the residence
of the Chief of such mission, or
" (5) the property consists of any contractual
obligation or any proceeds from such a contractual
obligation to indemnify or hold harmless the
foreign state or its employees under a policy of
automobile or other liability or casualty insurance
covering the claim which merged into the judgment.
" (b) In addition to subsection (a), any property
in the United States of an agency or instrumentality of
a foreign state engaged in commercial activity in the
United States shall not be immune from attachment in
aid of execution, or from execution, upon a judgment
entered by a court of the United States or of a State
after the effective date of this Act, if -
" (1) the agency or instrumentality has waived
its immunity from attachment in aid of
-26-
execution or from execution either explicitly
or implicitly, notwithstanding any withdrawal
of the waiver the agency or instrumentality may
purport to effect except in accordance with the
terms of the waiver, or
" (2) the judgment relates to a claim for
which the agency or instrumentality is not
immune by virtue of sections 1605 (a) (2), (3) or
(5), or 1605 (b) of this chapter, regardless of
whether the property is or was used for the
activity upon which the claim is based.
" (c) No attachment or execution referred to in
subsections (a) and (b) of this section shall be
permitted until the court has ordered such attachment
and execution after having determined that a reasonable
period of time has elapsed following the entry of judg-
ment and the giving of any notice required under
section 1608 (e) of this chapter.
" (d) The property of a foreign state, as defined
in section 1603 (a) of this chapter, used for a com-
mercial activity in the United States, shall not be
immune from attachment prior to the entry of judgment
in any action brought in a court of the United States or
of a State, or prior to the elapse of the period of time
provided in subsection (c) of this section, if -
-27-
-8S-
2"
" (1) the foreign state has explicitly
waived its immunity from attachment prior to
(s)
judgment, notwithstanding any withdrawal of
to
the waiver the foreign state may purport to
effect except in accordance with the terms of
the waiver, and Encommt
Isda (2) the purpose of the attachment is to
secure satisfaction of a judgment that has
been or may ultimately be entered against the
foreign state, and not to obtain jurisdiction.
to TO bedinu to and nt Adpross
orai moldoes to amoisivong (d)."
Ilede 93638 пріэтов B to 903 aids to
- 11 ,notwoexe bas snummi ed
пріэтой S to Jsdj ai 900 (I)"
101 bled TO knsd
10 kned dous sselm nwo all
vitioliqxe 85d пріэтої JASISQ att 10
to bis nt most ysinummi att beview
most TO ,moljubexe
, lasd add doldw I9VI5W edd to Iswaibdjiw YOUR
of Y5M 10 VISIONIUS
add to amied edd div at a
-28-
"§ 1611. Certain types of property immune from
execution
" (a) Notwithstanding the provisions of section 1610
of this chapter, the property of those organizations
designated by the President as being entitled to enjoy
the privileges, exemptions, and immunities provided by
the International Organizations Immunities Act shall
not be subject to attachment or any other judicial
process impeding the disbursement of funds to, or on
the order of, a foreign state as the result of an
action brought in the courts of the United States or of
the States.
" (b) Notwithstanding the provisions of section 1610
of this chapter, the property of a foreign state shall
be immune from attachment and from execution, if -
"(1) the property is that of a foreign
central bank or monetary authority held for
its own account, unless such bank or authority,
or its parent foreign government, has explicitly
waived its immunity from attachment in aid of
execution, or from execution, notwithstanding
any withdrawal of the waiver which the bank,
authority or government may purport to effect
except in accordance with the terms of the
waiver; or
-29-
,8S
to
1001
.2
SEC'
toem
(2) the property is, or is intended to be,
used in connection with a military activity and
" (A) is of a military character, or
benifeb
ye (B) is under the control of a
military authority or defense agency. "; and
(b) That the analysis of "Part IV. - Jurisdiction
and Venue" of Title 28, United States Code, is amended
by inserting after -- of pnivig
"95. Customs Court. ", tadd to JISQ Istinsia
al
10
the following new item:
"97. Jurisdictional Immunities of Foreign States.
al 93638 5 10 TO Issuev sdd
asbau at mislo edj 11
teffit aids 10 (d) 2021 moldoes
900 dolriw ni dolutain Istoibut YAS ni (E)"
ob of beaneo}I at ytilsingmwijani TO Yoneps
noijos edj 11 ,ssentaud рпіоб al TO assniand
10 урлерь as Janispa Advord al
(d) 8001 molices ni benifeb 86 пріэтой 5 10
20 (911) aids to
Comer Johnseld 893658 befinU and at (A)"
ai moldos add 11 sidmule) to Jointaid edj 101
Isolitioq TO 93638 пріэтой B tentaps
tostedo notalvibdue
-30-
SEC. 5. That section 1391 of title 28, United
States Code, is amended by adding at the end thereof
the following new subsection:
" (f) A civil action against a foreign state as
defined in section 1603 (a) of this title may be
brought --
" (1) in any judicial district in which a
substantial part of the events or omissions
giving rise to the claim occurred, or a sub-
stantial part of property that is the subject
of the action is situated;
" (2) in any judicial district in which
the vessel or cargo of a foreign state is
situated, if the claim is asserted under
section 1605 (b) of this title;
" (3) in any judicial district in which the
agency or instrumentality is licensed to do
business or is doing business, if the action
is brought against an agency or instrumentality
of a foreign state as defined in section 1603 (b)
of this title; or
" (4) in the United States District Court
for the District of Columbia if the action is
brought against a foreign state or political
subdivision thereof.
-31-
SEC. 6. That section 1441 of title 28, United
States Code, is amended by adding at the end thereof
the following new subsection:
"
(d) Any civil action brought in a State court
against a foreign state as defined in section 1603 (a)
of this title may be removed by the foreign state to
the district court of the United States for the district
and division embracing the place where such action is
pending. Upon removal the action shall be tried by the
court without jury. Where removal is based upon this
subsection, the time limitations of section 1446 (b)
of this chapter may be enlarged at any time for cause
shown." "
-32-
-18-
SEC. 7. If any provision of this Act or the
application thereof to any foreign state is held
invalid, the invalidity does not affect other
visions or applications of the Act which can be [o] grit
given effect without the invalid provision or application,
and to this end the provisions of this Act are severable.
of 93538 прівтой edd yd bevomen sd yam effit aids to
Joinjaib eris IOI astail bettnu add to Johnsaib 901
ai nottos done siedw sosiq 9dj noleivib bris
edd yd belig ed Ilade moldos Isvomer nogo .pribneq
aids noqu beasd at Isvomer stedW .yrut come
moljoes to emotistimil smit edj
92USO not 9mij yrs J5 bepisine ed ysm Tedqado aids to
.nwode
OCTOBER 26, 1976
BILL STATUS OFFICE
PAGE 1
U.S. HOUSE OF REPRESENTATIVES
94TH CONG. STATUS PROFILE FOR H.R.11315
OFFICIAL TITLE....
FOREIGN SOVEREIGN IMMUNITIES ACT
SPONSOR
RODINO
DATE INTRODUCED.. DEC 19, 75
HOUSE COMMITTEE... THE JUDICIARY
60099
TITLE
A BILL TO DEFINE THE JURISDICTION OF UNITED STATES
COURTS IN SUITS AGAINST FOREIGN STATES, THE
CIRCUMSTANCES IN WHICH FOREIGN STATES ARE IMMUNE
FROM SUIT AND IN WHICH EXECUTION MAY NOT BE LEVIED
ON THEIR PROPERTY, AND FOR OTHER PURPOSES
CO-SPONSORS
HUTCHINSON.
DEC 19, 75 REFERRED TO HOUSE COMMITTEE ON THE JUDICIARY.
DEC 31, 75 REFERRED TO SUBCOMMITTEE ON ADMIN LAW & GOVERNMENTAL
RELATIONS.
JUN 2, 76 FIRST DAY OF SUBCOMMITTEE HEARINGS.
JUN 4, 76 FINAL DAY OF SUBCOMMITTEE HEARINGS.
SEP 1, 76 FIRST DAY OF SUBCOMMITTEE CONSIDERATION AND MARK-UP
SESSION.
SEP 1, 76 FINAL DAY OF SUBCOMMITTEE CONSIDERATION AND MARK-UP
SESSION.
SEP 1, 76 FORWARDED BY SUBCOMMITTEE TO FULL COMMITTEE AMENDED.
SEP 9, 76 FIRST DAY OF COMMITTEE CONSIDERATION AND MARK-UP
SESSION.
SEP 9, 76 FINAL DAY OF COMMITTEE CONSIDERATION AND MARK-UP
SESSION.
SEP 9, 76 ORDERED TO BE REPORTED AMENDED.
SEP 9, 76 REPORTED TO HOUSE AMENDED BY HOUSE COMMITTEE ON THE
JUDICIARY. REPORT NO: 94-1487.
SEP 9, 76 PLACED ON UNION CALENDAR, NO: 766.
SEP 29, 76 PASSED HOUSE (AMENDED) BY VOICE VOTE.
OCT 1, 76 PASSED SENATE BY VOICE VOTE.
OCT 1, 76 MEASURE CLEARED FOR THE WHITE HOUSE.
OCTOBER 26, 1976
BILL STATUS OFFICE
PAGE 2
U.S. HOUSE OF REPRESENTATIVES
94TH CONG. STATUS PROFILE FOR H.R. 11315
OCT 12, 76 DELIVERED TO PRESIDENT.
OCT 21, 76 SIGNED BY PRESIDENT.
OCT 21, 76 BECAME LAW. PUBLIC LAW NO: 94-583.
28 2939
OCTOBER 14, 1976
BILL STATUS OFFICE
PAGE 1
U.S. HOUSE OF REPRESENTATIVES
94TH CONG. STATUS PROFILE FOR H.R.11315
OFFICIAL TITLE
FOREIGN SOVEREIGN IMMUNITIES ACT
SPONSOR
RODINO
DATE INTRODUCED DEC 19, 75
6815059
HOUSE COMMITTEE THE JUDICIARY
TITLE
A BILL TO DEFINE THE JURISDICTION OF UNITED STATES
COURTS IN SUITS AGAINST FOREIGN STATES, THE
CIRCUMSTANCES IN WHICH FOREIGN STATES ARE IMMUNE
FROM SUIT AND IN WHICH EXECUTION MAY NOT BE LEVIED
ON THEIR PROPERTY, AND FOR OTHER PURPOSES
CO-SPONSORS
HUTCHINSON.
DEC 19, 75 REFERRED TO HOUSE COMMITTEE ON THE JUDICIARY.
DEC 31, 75 REFERRED TO SUBCOMMITTEE ON ADMIN LAW & GOVERNMENTAL
RELATIONS.
JUN 2, 76 FIRST DAY OF SUBCOMMITTEE HEARINGS.
JUN 4, 76 FINAL DAY OF SUBCOMMITTEE HEARINGS.
SEP 1, 76 FIRST DAY OF SUBCOMMITTEE CONSIDERATION AND MARK-UP
SESSION.
SEP 1, 76 FINAL DAY OF SUBCOMMITTEE CONSIDERATION AND MARK-UP
SESSION.
SEP 1, 76 FORWARDED BY SUBCOMMITTEE TO FULL COMMITTEE AMENDED.
SEP 9, 76 FIRST DAY OF COMMITTEE CONSIDERATION AND MARK-UP
SESSION.
SEP 9, 76 FINAL DAY OF COMMITTEE CONSIDERATION AND MARK-UP
SESSION.
SEP 9, 76 ORDERED TO BE REPORTED AMENDED.
SEP 9, 76 REPORTED TO HOUSE AMENDED BY HOUSE COMMITTEE ON THE
JUDICIARY. REPORT NO: 94-1487.
SEP 9, 76 PLACED ON UNION CALENDAR, NO: 766.
SEP 29, 76 PASSED HOUSE (AMENDED) BY VOICE VOTE.
OCT 1, 76 PASSED SENATE BY VOICE VOTE.
OCT 1, 76 MEASURE CLEARED FOR THE WHITE HOUSE.
OCTOBER 14, 1976
BILL STATUS OFFICE
PAGE 2
U.S. HOUSE OF REPRESENTATIVES
94TH CONG. STATUS PROFILE FOR H.R.11315
OCT 12, 76 DELIVERED TO PRESIDENT.
OCTOBER 7, 1976
BILL STATUS OFFICE
PAGE 1
U.S. HOUSE OF REPRESENTATIVES
94TH CONG. STATUS PROFILE FOR H.R.11315
OFFICIAL TITLE.... FOREIGN SOVEREIGN IMMUNITIES ACT
SPONSOR
RODINO
DATE INTRODUCED... DEC 19, 75
HOUSE COMMITTEE... THE JUDICIARY
TITLE
A BILL TO DEFINE THE JURISDICTION OF UNITED STATES
COURTS IN SUITS AGAINST FOREIGN STATES, THE
CIRCUMSTANCES IN WHICH FOREIGN STATES ARE IMMUNE
FROM SUIT AND IN WHICH EXECUTION MAY NOT BE LEVIED
ON THEIR PROPERTY, AND FOR OTHER PURPOSES
CO-SPONSORS
HUTCHINSON.
DEC 19, 75 REFERRED TO HOUSE COMMITTEE ON THE JUDICIARY.
DEC 31, 75 REFERRED TO SUBCOMMITTEE ON ADMIN LAW & GOVERNMENTAL
RELATIONS.
JUN 2, 76 FIRST DAY OF SUBCOMMITTEE HEARINGS.
JUN 4, 76 FINAL DAY OF SUBCOMMITTEE HEARINGS.
SEP 1, 76 FIRST DAY OF SUBCOMMITTEE CONSIDERATION AND MARK-UP
SESSION.
SEP 1, 76 FINAL DAY OF SUBCOMMITTEE CONSIDERATION AND MARK-UP
SESSION.
SEP 1, 76 FORWARDED BY SUBCOMMITTEE TO FULL COMMITTEE AMENDED.
SEP 9, 76 FIRST DAY OF COMMITTEE CONSIDERATION AND MARK-UP
SESSION.
SEP 9, 76 FINAL DAY OF COMMITTEE CONSIDERATION AND MARK-UP
SESSION.
SEP 9, 76 ORDERED TO BE REPORTED AMENDED.
SEP 9, 76 REPORTED TO HOUSE AMENDED BY HOUSE COMMITTEE ON THE
JUDICIARY. REPORT NO: 94-1487.
SEP 9, 76 PLACED ON UNION CALENDAR, NO: 766.
SEP 29, 76 PASSED HOUSE (AMENDED) BY VOICE VOTE.
OCT 1, 76 PASSED SENATE BY VOICE VOTE.
OCT 1, 76 MEASURE CLEARED FOR THE WHITE HOUSE.
OCTOBER 6, 1976
BILL STATUS OFFICE
PAGE 1
U.S. HOUSE OF REPRESENTATIVES
94TH CONG. STATUS PROFILE FOR H.R. 11315
OFFICIAL TITLE
FOREIGN SOVEREIGN IMMUNITIES ACT
SPONSOR
RODINO
DATE INTRODUCED.. DEC 19, 75
HOUSE COMMITTEE. THE JUDICIARY
TITLE
A BILL TO DEFINE THE JURISDICTION OF UNITED STATES
COURTS IN SUITS AGAINST FOREIGN STATES, THE
CIRCUMSTANCES IN WHICH FOREIGN STATES ARE IMMUNE
FROM SUIT AND IN WHICH EXECUTION MAY NOT BE LEVIED
ON THEIR PROPERTY, AND FOR OTHER PURPOSES
CO-SPONSORS
HUTCHINSON.
DEC 19, 75 REFERRED TO HOUSE COMMITTEE ON THE JUDICIARY.
DEC 31, 75 REFERRED TO SUBCOMMITTEE ON ADMIN LAW & GOVERNMENTAL
RELATIONS.
JUN 2, 76 FIRST DAY OF SUBCOMMITTEE HEARINGS.
JUN 4, 76 FINAL DAY OF SUBCOMMITTEE HEARINGS.
SEP 1, 76 FIRST DAY OF SUBCOMMITTEE CONSIDERATION AND MARK-UP
SESSION.
SEP 1, 76 FINAL DAY OF SUBCOMMITTEE CONSIDERATION AND MARK-UP
SESSION.
SEP 1, 76 FORWARDED BY SUBCOMMITTEE TO FULL COMMITTEE AMENDED.
SEP 9, 76 FIRST DAY OF COMMITTEE CONSIDERATION AND MARK-UP
SESSION.
SEP 9, 76 FINAL DAY OF COMMITTEE CONSIDERATION AND MARK-UP
SESSION.
SEP 9, 76 ORDERED TO BE REPORTED AMENDED.
SEP 9, 76 REPORTED TO HOUSE AMENDED BY HOUSE COMMITTEE ON THE
JUDICIARY. REPORT NO: 94-1487.
SEP 9, 76 PLACED ON UNION CALENDAR, NO: 766.
SEP 29, 76 PASSED HOUSE (AMENDED) BY VOICE VOTE.
OCT 1, 76 PASSED SENATE BY VOICE VOTE.
OCT 1, 76 MEASURE CLEARED FOR THE WHITE HOUSE.
SEPTEMBER 30, 1976
BILL STATUS OFFICE
PAGE 1
U.S. HOUSE OF REPRESENTATIVES
94TH CONG. STATUS PROFILE FOR H.R.11315
OFFICIAL TITLE.... FOREIGN SOVEREIGN IMMUNITIES ACT
SPONSOR
RODINO
DATE INTRODUCED... DEC 19, 75
2810261
HOUSE COMMITTEE... THE JUDICIARY
TITLE
A BILL TO DEFINE THE JURISDICTION OF UNITED STATES
COURTS IN SUITS AGAINST FOREIGN STATES, THE
CIRCUMSTANCES IN WHICH FOREIGN STATES ARE IMMUNE
FROM SUIT AND IN WHICH EXECUTION MAY NOT BE LEVIED
ON THEIR PROPERTY, AND FOR OTHER PURPOSES
CO-SPONSORS
HUTCHINSON.
DEC 19, 75 REFERRED TO HOUSE COMMITTEE ON THE JUDICIARY.
DEC 31, 75 REFERRED TO SUBCOMMITTEE ON ADMIN LAW & GOVERNMENTAL
RELATIONS.
JUN 2, 76 FIRST DAY OF SUBCOMMITTEE HEARINGS.
JUN 4, 76 FINAL DAY OF SUBCOMMITTEE HEARINGS.
SEP 1, 76 FIRST DAY OF SUBCOMMITTEE CONSIDERATION AND MARK-UP
SESSION.
SEP 1, 76 FINAL DAY OF SUBCOMMITTEE CONSIDERATION AND MARK-UP
SESSION.
SEP 1, 76 FORWARDED BY SUBCOMMITTEE TO FULL COMMITTEE AMENDED.
SEP 9, 76 FIRST DAY OF COMMITTEE CONSIDERATION AND MARK-UP
SESSION.
SEP 9, 76 FINAL DAY OF COMMITTEE CONSIDERATION AND MARK-UP
SESSION.
SEP 9, 76 ORDERED TO BE REPORTED AMENDED.
SEP 9, 76 REPORTED TO HOUSE AMENDED BY HOUSE COMMITTEE ON THE
JUDICIARY. REPORT NO: 94-1487.
SEP 9, 76 PLACED ON UNION CALENDAR, NO: 766.
SEP 29, 76 PASSED HOUSE (AMENDED) BY VOICE VOTE.
учшјлоп
Union Calendar No. 766
94TH CONGRESS
2D SESSION
H.R. 11315
10
(s)
00
[Report No. 94-1487]
Vianami
at
è
IN THE HOUSE OF REPRESENTATIVES
a
DECEMBER 19, 1975
Mr. RODINO (for himself and Mr. HUTCHINSON) (by request) introduced the
following bill; which was referred to the Committee on the Judiciary
is
doidw
8
SEPTEMBER 9, 1976
Reported with amendments, committed to the Committee of the Whole House
on the State of the Union, and ordered to be printed
[Omit the part struck through and insert the part printed in italic]
to
OI
(d)
TXTEST
(a)
A
BILL
To define the jurisdiction of United States courts in suits against
lo
foreign states, the circumstances in which foreign states are
immune from suit and in which execution may not be levied
on their property, and for other purposes.
(d)
or
1
Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That this Act may be cited as the "Foreign Sovereign
4 Immunities Act of 1975 1976"
5
SEC. 2. (a) That chapter 85 of title 28, United States
6 Code, is amended by inserting immediately before section
7 1331 the following new section:
8 "§ 1330. Actions against foreign states
(S)
"
9
(a) The district courts shall have original jurisdiction
I
2
3
1
without regard to amount in controversy of any nonjury
1
(3) citizens of different States and in which citi-
2 civil action against a foreign state as defined in section 1603
2
zens or subjects of a foreign state are additional parties;
3 (a) of this title as to any claim for relief in personam with
3
and
4 respect to which the foreign state is not entitled to immunity
(4) a foreign state, defined in section 1603 (a) of
5 either under sections 1605-1607 of this title or under any
this title, as plaintiff and citizens of a State or of different
6 applicable international agreement.
6
States.
(b) Personal jurisdiction over a foreign state shall
7
7
SEC. 4. (a) That title 28, United States Code, is
8 exist as to every claim for relief over which the district
8 amended by inserting after chapter 95 the following new
9 courts have jurisdiction under subsection (a) where service
9 chapter:
10 of process has been made under section 1608 of this title.
10
"Chapter 97.-JURISDICTIONAL IMMUNITIES OF
" (c) For purposes of subsection (b), an appearance by
11
11
FOREIGN STATES
12 a foreign state does not confer personal jurisdiction with
"Sec.
"1602. Findings and declaration of purpose.
13 respect to any claim for relief not arising out of any trans-
"1603. Definitions.
"1604. Immunity of a foreign state from jurisdiction.
14 action or occurrence enumerated in sections 1605-1607 of
"1605. General exceptions to the jurisdictional immunity of a foreign
state.
"1606. Claims involving the public debt.
15
this
title."
"1606. Extent of liability.
(d)
"1607. Counterclaims.
16
(b) By inserting in the chapter analysis of that chapter
"1608. Service of process; time to answer; default.
(d)
"1608. Service; time to answer default.
17 before-
"1609. Immunity from attachment and execution of property of a foreign TI
S
state.
'1331. Federal question; amount in controversy; costs."
"1610. Exceptions to the immunity from attachment or execution.
"1611. Certain types of property immune from execution.
18 the following new item:
12 1602. Findings and declaration of purpose
"1330. Actions against foreign states.".
OS
13
SEC. 3. That section 1332 of title 28, United States
"The Congress finds that the determination by United
19
20 Code, is amended by striking subsections (a) (2) and (3)
14 States courts of the claims of foreign states to immunity from
21 and substituting in their place the following:
15 the jurisdiction of such courts would serve the interests of
22
" (2) citizens of a State and citizens or subjects of
16 justice and would protect the rights of both foreign states
17 and litigants in United States courts. Under international
23
a foreign state;
I
4
5
1 law, states are not immune from the jurisdiction of foreign
1 (3) which is neither a citizen of a State of
2 courts insofar as their commercial activities are concerned,
2
the United States as defined in section 1332 (c)
3 and their commercial property may be levied upon for the
3
and (d) of this title, nor created under the laws of
4: satisfaction of judgments rendered against them in con-
4
any third country.
5 nection with their commercial activities. Claims of foreign
5
(c) The 'United States' includes all territory and
6 states to immunity should henceforth be decided by courts
6
waters, continental or insular, subject to the jurisdiction
7 of the United States and of the States in conformity with the
7
of
the
United
States.
8 principles set forth in this chapter.
8
il (d) A commercial activity' means either a regu-
9 "§ 1603. Definitions
9
lar course of commercial conduct or a particular commer-
10
"For
purposes
of
this
chapter
10
cial transaction or act. The commercial character of an
11
" (a) A foreign state, except as used in sections
11
activity shall be determined by reference to the nature
12
1606 and section 1608 of this title, includes a political
12
of the course of conduct or particular transaction or act,
13
subdivision of a foreign state or an agency or in-
13
rather than by reference to its purpose.
14
strumentality of a foreign state as defined in subsection
14
(e) A 'commercial activity carried on in the
15
(b)
15
United States by a foreign state' means commercial ac-
16
" (b) An 'agency and or instrumentality of a for-
16
tivity carried on by such state and having substantial
17
eign state' means any entity-
17
contact with the United States.
18
(1) which is a separate legal person, corpo-
18 "§ 1604. Immunity of a foreign state from jurisdiction
19
rate or otherwise, and
19
Subject to existing and future international agreements
20
(2) which is an organ of a foreign state or
20 to which the United States is a party at the time of enactment
21
political subdivision thereof, or a majority of whose
21 of this Act a foreign state shall be immune from the jurisdic-
22
shares or other ownership interest is owned by a
22 tion of the courts of the United States and of the States ex-
23
foreign state or political subdivision thereof, and
23 cept as provided in sections 1605 to 1607 of this chapter.
6
7
11
1605. General exceptions to the jurisdictional immunity
1
tality of the foreign state and that agency or instrumen-
2
of a foreign state
2
tality is engaged in a commercial activity in the United
13
(a) A foreign state shall not be immune from the
3
States;
4 jurisdiction of courts of the United States or of the States
(4) in which rights in property in the United
5
in any case
5
States acquired by succession or gift or rights in immov-
6
(1) in which the foreign state has waived its im-
6
able property situated in the United States are in issue;
7
munity either explicitly or by implication, notwithstand-
7
or
8
ing any withdrawal of the waiver which the foreign
8
(5) not otherwise encompassed in paragraph (2)
9
state may purport to effect except in accordance with the
9
above, in which money damages are sought against a
10
terms of the waiver;
10
foreign state for personal injury or death, or damage to
11
of (2) in which the action is based upon a commer-
11
or loss of property, occurring in the United States and
12
cial activity carried on in the United States by the foreign
12
caused by the tortious act or omission of that foreign
13
state; or upon an act performed in the United States in
13
state or of any official or employee of that foreign state
14
connection with a commercial activity of the foreign
14
while acting within the scope of his office or employ-
15
15
state elsewhere; or upon an act outside the territory of
ment; except this paragraph shall not apply to
16
16
the United States in connection with a commercial ac-
(A) any claim based upon the exercise or
17
17
tivity of the foreign state elsewhere and that act causes
performance or the failure to exercise or perform
18
18
a direct effect in the United States;
a discretionary function regardless of whether the
19
19
(3) in which rights in property taken in violation
discretion be abused, or
20
20
of international law are in issue and that property or any
(B) any claim arising out of malicious prose-
21
21
property exchanged for such property is present in the
cution, abuse of process, libel, slander, misrepresen-
22
22
United States in connection with a commercial activity
tation, deceit, or interference with contract rights.
23
23
carried on in the United States by the foreign state; or
(b) A foreign state shall not be immune from the juris-
24
that property or any property exchanged for such prop-
24 diction of the courts of the United States in any case in which
25
erty is owned or operated by an agency or instrumen-
25 a suit in admiralty is brought to enforce a maritime lien
8
9
1 against a vessel or cargo of the foreign state, which maritime
1 deemed to be an in personam claim against the foreign state
2 lien is based upon a commercial activity of the foreign state:
2 which at that time owns the vessel or cargo involved: Pro-
3 Provided, That-
3 vided, That a court may not award judgment against the
4
(1) notice of the suit is given by service delivery
4 foreign state in an amount greater than the value of the vessel
5
of a copy of the summons and of the complaint to the
5 or cargo upon which the maritime lien arose, such value to
6
person, or his agent, having possession of the vessel or
6 be determined as of the time notice is served under subsection
7
cargo against which the maritime lien is asserted; but
7 (b) (1) of this section.
8
such notice shall not be deemed to have been served
8 "I 1606. Extent of liability
9
delivered, nor may it thereafter be served delivered, if the
9
(c) As to any claim for relief with respect to which
10
vessel or cargo is arrested pursuant to process obtained
10 a foreign state is not entitled to immunity under this section
11
on behalf of the party bringing the suit-unless the party
11 or under section 1606 section 1605 or 1607 of this chapter,
12
was unaware that the vessel or cargo of a foreign state
12 the foreign state shall be liable in the same manner and to
13
was involved, in which event the service of process of
13 the same extent as a private individual under like circum-
14
arrest shall be deemed to constitute valid service delivery
14 stances; but a foreign state itself, as distinguished from a
15
of such notice; and
15 political subdivision thereof or from except for an agency or
16
(2) notice to the foreign state of the commence-
16 instrumentality thereof of a foreign state, shall not be liable
17
ment of suit as provided in section 1608 of this title is
17 in tort for interest prior to judgment or shall not be liable
18
initiated within ten days either of the service of process
18 for punitive damages; if, however, in any case wherein
19
delivery of notice as provided in subsection (b) (1) of
19 death was caused, the law of the place where the action
20
this section or, in the case of a party who was unaware
20 or omission occurred provides, or has been construed to
21
that the vessel or cargo of a foreign state was involved,
21 provide, for damages only punitive in nature, the foreign
22
of the date such party determined the existence of the for-
22 state shall be liable for actual or compensatory damages
23
eign state's interest.
23 measured by the pecuniary injuries resulting from such death
24 "Whenever notice is served delivered under subsection (b)
24 which were incurred by the persons for whose benefit the
25 (1) of this section, the maritime lien shall thereafter be
25 action was brought.
H.R. 11315-2
10
11
1
"S 1606. Claims involving the public debt
1
of this chapter had such claim been brought in a separate
2
(a) For purposes of this section, a 'forcign state' shall
2
action against the foreign state; or
3 not include a political subdivision of a foreign state or an
3
" (b) arising out of the transaction or occurrence
4 agency or instrumentality of a foreign state.
4
that is the subject matter of the claim of the foreign
5
(b) Notwithstanding the provisions of section 1605
5
state; or
6 of this chapter, a foreign state shall be immune from the
6
"
(c) to the extent that the counterclaim does not
7 jurisdiction of the courts of the United States and of the
7
seek relief exceeding in amount or differing in kind from
8 States in any case relating to debt obligations incurred for
8
that sought by the foreign state.
9 general governmental purposes unless
9 1608. Service of process; time to answer; default
10
'(1) the foreign state has waived its immunity
10
"Subject to existing and future international agreements
11
explicitly, notwithstanding any withdrawal of the
11 to which the United States is a party
12
waiver which the foreign state may purport to effect
12
(a) service in the courts of the United States and
13
except in accordance with the terms of the waiver; or
13
of the States shall be made upon a foreign state or
14
(2) the case arises under provisions codified as
14
political subdivision of a foreign state:
15
sections 77a through 80b 21 of title 15, United States
15
(1) by delivering a copy of the summons and
16
Code, as amended, or any other statute which may here-
16
of the complaint in accordance with any special
17
after be administered by the United States Securities
17
arrangement for service between the plaintiff and
18
and Exchange Commission.
18
the foreign state or political subdivision; or
19
1607. Counterclaims
19
(2) if no special arrangement exists, and if
20
"In any action brought by a foreign state, or in which
20
service is reasonably calculated to give actual
21 a foreign state intervenes, in a court of the United States
21
notice
22 or of a State, the foreign state shall not be accorded immunity
22
(A) by service of a copy of the summons
23
with respect to any counterclaim-
23
and of the complaint, together with a transla
24
" (a) for which a foreign state would not be entitled
24
tion into the official language of the foreign
25
to immunity under sections 1605 and 1606 section 1605
25
state, as directed by an authority of the foreign
12
13
1
state or of the political subdivision in response
1
proceeding in question that it prefers that serv-
2
to a letter rogatory or request, or
2
ice not be made through diplomatic channels,
3
(B) by sending a copy of the summons
3
by sending two copies of the summons and of the
4
and of the complaint, together with a transla-
4
complaint, together with a translation into the official
5
tion into the official language of the foreign
5
language of the foreign state, by any form of mail
6
state, by any form of mail requiring a signed
6
requiring a signed receipt, to be addressed and dis-
7
receipt, to be addressed and dispatched by the
7
patched by the clerk of the court, to the Secretary
8
clerk of the court to the official in charge of the
8
of State at Washington, District of Columbia, to
9
foreign affairs of the foreign state which is,
9
the attention of the Director of Special Consular
10
or whose political subdivision is, named in the
10
Services, and the Secretary shall send one copy
11
complaint; or
11
through diplomatic channels to the foreign state and
12
(3) if proof of service is not made within
12
shall send a certified copy of the diplomatic note
13
sixty days after service has been initiated under
13
to the clerk of the court in which the action is
14
paragraph (1) or (2) of this subsection, and if
14
pending. The Secretary shall maintain and publish
15
"(A) the claim for relief arises out of an
15
in the Federal Register a list of foreign states upon
16
activity or act in the United States of a diplo-
16
which service may be made under subparagraphs
17
matic or consular representative of the foreign
17
(B) and (C) of this paragraph, and such list shall
18
state for which the foreign state is not immune
18
be conclusive for purposes of subparagraphs (B)
19
from jurisdiction under section 1605 of this
19
and (C)
20
title, or
20
(b) service in the courts of the United States and
21
(B) the foreign state uses diplomatic
21
of the States shall be made upon an agency or instrumen-
22
channels for service upon the United States or
22
tality of a foreign state:
23
any other foreign state, or
23
(1) by delivering a copy of the summons and
24
(C) the foreign state has not notified the
24
of the complaint in accordance with any special ar
25
Secretary of State prior to the institution of the
11315
14
15
1
rangement for service between the plaintiff and the
1
sistent with the law of the place where service
2
agency or instrumentality; or
2
is to be made;
3
(2) if no special arrangement exists, by de-
3
(e) for the purposes of this section, service of
4
livering a copy of the summons and of the com-
4
process shall be deemed to have been made
5
plaint to an officer, a managing or general agent or
5
(1) in the case of subsections (a) (1) and
6
to any other agent authorized by appointment or
6
(b) (1) when delivered in accordance with the
7
by law to receive service of precess in the United
7
terms of the special arrangement;
8
States; or
8
(2) in the case of subsections (a) (2) (B)
9
(3) if service cannot be made under para-
9
and (b) (3) (A), when delivered as directed by an
10
graph (1) or (2) of this subsection, and if service
10
authority of the foreign state or political subdivision,
11
is reasonably calculated to give actual notice-
11
(3) in the case of subsections (a) (2) (B)
12
(A) by service of a copy of the summons
12
and (b) (3) (B), when received abroad by mail, as
13
and of the complaint, together with a trans-
13
evidenced by the returned, signed receipt;
14
lation into the official language of the foreign
14
(4) in the case of subsection (b) (2), when
15
state, as directed by an authority of the foreign
15
delivered to an officer, managing or general agent or
16
state or of a political subdivision in response to
16
appointed agent in the United States;
17
a letter rogatory or request, or
17
(5) in the case of subsection (a) (3), when
18
(B) by sending a copy of the summons
18
sent through diplomatic channels, as evidenced by
19
and of the complaint, together with a trans-
19
a certified copy of the diplomatic note of trans-
20
lation into the official language of the foreign
20
mittal;
21
state, by any form of mail requiring a signed re-
21
(6) in the case of subsection (b) (3) (C)
22
ceipt, to be addressed and dispatched by the
22
when served as directed by order of the court;
23
clerk of the court to the agency or instrumen-
23
(d) in any action brought in a court of the United
24
tality to be served, or
24
States or of a State, a foreign state, a political subdivision
25
"(C) as directed by order of the court con-
25
thereof, or an agency or instrumentality of a foreign state
16
17
1
shall serve an answer or other responsive pleading to
1
(1) or (2), by sending a copy of the summons and com-
2
the complaint or to a cross claim, or a reply to a coun-
2
plaint and a notice of suit, together with a translation of
3
terelaim, within sixty days after the service of the plead-
3
each into the official language of the foreign state, by any
4
ing in which a claim is asserted, and
4
form of mail requiring a signed receipt, to be addressed
5
"(c) no judgment by default shall be entered by a
5
and dispatched by the clerk of the court to the head of the
6
court of the United States or of a State against a foreign
6
ministry of foreign affairs of the foreign state concerned,
7
state, a political subdivision thereof, or an agency or
7
or
8
instrumentality of a foreign state, unless the claimant
8
"(4) if service cannot be made within 30 days under
9
establishes his claim or right to relief by evidence satis-
9
paragraph (3), by sending two copies of the summons
10
factory to the court. A copy of any such default judgment
10
and complaint and a notice of suit, together with a trans-
11
shall be sent to the foreign state or political subdivision
11
lation of each into the official language of the foreign
12
in the manner preseribed for service of process in this
12
state, by any form of mail requiring a signed receipt, to
13
section.
13
be addressed and dispatched by the clerk of the court to
14
"(a) Service in the courts of the United States and of
14
the Secretary of State in Washington, District of Colum-
15 the States shall be made upon a foreign state or political sub-
15
bia, to the attention of the Director of Special Consular
16 division of a foreign state:
16
Services-and the Secretary shall transmit one copy of
17
(1) by delivery of a copy of the summons and com-
17
the papers through diplomatic channels to the foreign
18
plaint in accordance with any special arrangement for
18
state and shall send to the clerk of the court a certified
19
service between the plaintiff and the foreign state or po-
19
copy of the diplomatic note indicating when the papers
20
litical subdivision; or
20
were transmitted.
21
"(2) if no special arrangement exists, by delivery
21
As used in this subsection, a 'notice of suit' shall mean a
22
of a copy of the summons and complaint in accordance
22 notice addressed to a foreign state and in a form prescribed
23
with an applicable international convention on service of
23
by the Secretary of State by regulation.
24
judicial documents; or
24
"(b) Service in the courts of the United States and of
25
"(3) if service cannot be made under paragraphs
18
19
1 the States shall be made upon an agency or instrumentality
1
"(C) as directed by order of the court consistent
2 of a foreign state:
2
with the law of the place where service is to be made.
3
"(1) by delivery of a copy of the summons and com-
3
"(c) Service shall be deemed to have been made-
4
plaint in accordance with any special arrangement for
4
"(1) in the case of service under subsection (a) (4),
5
service between the plaintiff and the agency or instru-
5
as of the date of transmittal indicated in the certified copy
6
mentality; or
6
of the diplomatic note; and
7
"(2) if no special arrangement exists, by delivery
7
"(2) in any other case under this section, as of the
8
of a copy of the summons and complaint either to an
8
date of receipt indicated in the certification, signed and
9
officer, a managing or general agent, or to any other
9
returned postal receipt, or other proof of service appli-
10
agent authorized by appointment or by law to receive
10
cable tothe method of service employed.
11
service of process in the United States; or in accordance
11
"(d) In any action brought in a court of the United
12
with an applicable international convention on service of
12 States or of a State, a foreign state, a political subdivision
13
judicial documents; or
13 thereof, or an agency or instrumentality of a foreign state
14
"(3) if service cannot be made under paragraphs
14 shall serve an answer or other responsive pleading to the com-
15
(1) or (2), and if reasonably calculated to give actual
15 plaint within sixty days after service has been made under this
16
notice, by delivery of a copy of the summons and com-
16 section.
17
plaint, together with a translation of each into the official
17
"(e) No judgment by default shall be entered by a court
18
language of the foreign state-
18 of the United States or of a State against a foreign state, a
19
"(A) as directed by an authority of the foreign
19 political subdivision thereof, or an agency or instrumen-
20
state or political subdivision in response to a letter
20 tality of a foreign state, unless the claimant establishes his
21
rogatory or request or
21 claim or right to relief by evidence satisfactory to the court. A
22
"(B) by any form of mail requiring a signed
22 copy of any such default judgment shall be sent to the foreign
23
receipt, to be addressed and dispatched by the clerk
23 state or political subdivision in the manner prescribed for
24
of the court to the agency or instrumentality to le
24 service in this section.
25
served, or
(ε)
20
21
1
§ 1609. Immunity from attachment and execution of prop-
1
ing rights in property which has been taken in violation
2
erty of a foreign state
2
of international law or which has been exchanged for
3
"Subject to existing and future international agreements
3
property taken in violation of international law, or
4 to which the United States is a party at the time of enact-
4
(4) the execution relates to a judgment establish-
5 ment of this Act the property in the United States of a foreign
5
ing rights in property-
"
6 state shall be immune from attachment and from arrest and
6
(A) which is acquired by succession or gift,
7 execution except as provided in sections 1610 and 1611 of
7
or
8 this chapter.
18
" (B) which is immovable and situated in the
9
1610. Exceptions to the immunity from attachment or
United States: Provided, That such property is not
10
execution
10
used for purposes of maintaining a diplomatic or
11
"
(a) The property in the United States of a foreign
11
consular mission or the residence of the Chief of such
12 state, as defined in section 1603 (a) of this chapter, used
12
mission, or
13 for a commercial activity in the United States, shall not be
13
(5) the property consists of any contractual obli-
14 immune from attachment in aid of execution, or from execu-
14
gation or any proceeds from such a contractual obli-
15 tion, upon a judgment entered by a court of the United
15
gation to indemnify or hold harmless the foreign state
16 States or of a State after the effective date of this Act, if-
16
or its employees under a policy of automobile or other
17
(1) the foreign state has waived its immunity from
17
liability or casualty insurance covering the claim which
18
attachment in aid of execution or from execution either
18
merged into the judgment.
(b)
19
explicitly or by implication, notwithstanding any with-
19
(b) In addition to subsection (a) any property in
20
drawal of the waiver the foreign state may purport to
20 the United States of an agency or instrumentality of a for-
21
effect except in accordance with the terms of the waiver,
21 eign state engaged in commercial activity in the United
22
or
22 States shall not be immune from attachment in aid of execu-
23
"
(2) the property is or was used for the commercial
23 tion, or from execution, upon a judgment entered by a court
24
activity upon which the claim is based, or
24 of the United States or of a State after the effective date of
25
" (3) the execution relates to a judgment establish-
25 this Act, if
(1)
22
23
1
(1) the agency or instrumentality has waived its
1
immunity from attachment prior to judgment, notwith-
2
immunity from attachment in aid of execution or from
2
standing any withdrawal of the waiver the foreign state
3
execution either explicitly or implicitly, notwithstand-
3
may purport to effect except in accordance with the
4
ing any withdrawal of the waiver the agency or instru-
4
terms of the waiver, and
5
mentality may purport to effect except in accordance
15
(2) the purpose of the attachment is to secure
6
with the terms of the waiver, or
6
satisfaction of a judgment that has been or may ulti-
7
" (2) the judgment relates to a claim for which the
7
mately be entered against the foreign state, and not to
S
agency or instrumentality is not immune by virtue of
S
obtain jurisdiction.
9
section 1605 (a) (2), (3) or (5), or 1605 (b) of this
9
1611. Certain types of property immune from execution
10
"
10
chapter, regardless of whether the property is or was
(a) Notwithstanding the provisions of section 1610
11
used for the activity upon which the claim is based.
11 of this chapter, the property of those organizations designated
12
" (c) No attachment or execution referred to in sub-
12 by the President as being entitled to enjoy the privileges,
13 sections (a) and (b) of this section shall be permitted until
13 exemptions, and immunities provided by the International
14 the court has ordered such attachment and execution after
14 Organizations Immunities Act shall not be subject to attach-
15 having determined that a reasonable period of time has
15 ment or any other judicial process impending impeding the
16 elapsed following the entry of judgment and the giving of
16 disbursement of funds to, or on the order of, a foreign state
17 any notice required under section 1608 (e) of this chapter.
17 as the result of an action brought in the courts of the United
18
" (d) The property of a foreign state, as defined in sec-
18 States or of the States.
"
19 tion 1603 (a) of this chapter, used for a commercial activity
19
(b) Notwithstanding the provisions of section 1610
20 in the United States, shall not be immune from attachment
20 of this chapter, the property of a foreign state shall be
21 prior to the entry of judgment in any action brought in a
21 immune from attachment and from execution, if-
22 court of the United States or of a State, or prior to the elapse
22
(1) the property is that of a foreign central bank
23 of the period of time provided in subsection (c) of this
23
or monetary authority held for its own account, unless
24 section, if
24
such bank or authority, or its parent foreign government,
25
(1) the foreign state has explicitly waived its
25
has explicitly waived its immunity from attachment in
24
25
1
aid of execution, or from execution, notwithstanding any
1
or cargo of a foreign state is situated, if the claim is
2
withdrawal of the waiver which the bank, authority or
2
asserted under section 1605 (b) of this title;
3
government may purport to effect except in accordance
3
" (3) in any judicial district in which the agency or
4
with the terms of the waiver; or
4
instrumentality is licensed to do business or is doing
5
(2) the property is, or is intended to be, used in
5
business, if the action is brought against an agency or
6
connection with a military activity and
6
instrumentality of a foreign state as defined in section
7
(A) is of a military character, or
7
1603 (b) of this title; or
8
"
(B) is under the control of a military au-
8
" (4) in the United States District Court for the
9
thority or defense agency.'
9
District of Columbia if the action is brought against a
10 (b) That the analysis of "PART IV JURISDICTION AND
10
foreign state or political subdivision thereof.
11 Venue" of title 28, United States Code, is amended by in-
11
SEC. 6. That section 1441 of title 28, United States
12
serting after-
12 Code, is amended by adding at the end thereof the following
"95. Customs Court."
13 new subsection:
13 the following new item:
14
" (d) Any civil action brought in a State court against
"97. Jurisdictional Immunities of Foreign States.".
15 a foreign state as defined in section 1603 (a) of this title
14
SEC. 5. That section 1391 of title 28, United States
16 may be removed by the foreign state to the district court of
15 Code, is amended by adding at the end thereof the follow-
17 the United States for the district and division embracing
16 ing new subsection:
18 the place where such action is pending. Upon removal the
17
" (f) A civil action against a foreign state as defined
19 action shall be tried by the court without jury. Where re-
18 in section 1603 (a) of this title may be brought-
20 moval is based upon this subsection, the time limitations of
19
(1) in any judicial district in which a substantial
21 section 1446 (b) of this chapter may be enlarged at any time
20
part of the events or omissions giving rise to the claim
22 for cause shown.".
21
occurred, or a substantial part of property that is the sub-
23
SEC. 7. If any provision of this Act or the application
22
ject of the action is situated;
24 thereof to any foreign state is held invalid, the invalidity
23
(2) in any judicial district in which the vessel
25 does not affect other provisions or applications of the Act
26
1 which can be given effect without the invalid provision or
2 application, and to this end the provisions of this Act are
3 severable. doidw YOR (8) in accordange
gliob SEC. 8. This Act shall take effect ninety days after the
5 date of its enactment. used an
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Union Calendar No. 766
94TH CONGRESS
2D SESSION
H.R.11315
[Report No. 94-1487]
which can be effect without the invalid provision or
application, and to this end the of this Act are
Sec. This Act shall take effect ninety days after the
A BILL
To define the jurisdiction of United States
courts in suits against foreign states, the
circumstances in which foreign states are
immune from suit and in which execution
may not be levied on their property, and for
other purposes.
By Mr. RODINO and Mr. HUTCHINSON
DECEMBER 19, 1975
Referred to the Committee on the Judiciary
SEPTEMBER 9, 1976
Reported with amendments, committed to the Com-
mittee of the Whole House on the State of the
Union, and ordered to be printed
date of its
Union Calendar No. 766
94TH CONGRESS
2D SESSION
H.R. 11315
of (B)
[Report No. 94-1487]
IN THE HOUSE OF REPRESENTATIVES
DECEMBER 19, 1975
Mr. RODINO (for himself and Mr. HUTCHINSON) (by request) introduced the
following bill; which was referred to the Committee on the Judiciary
SEPTEMBER 9, 1976
Reported with amendments, committed to the Committee of the Whole House
on the State of the Union, and ordered to be printed
[Omit the 8021 part struck through and insert the part printed in italic]
or
9018789qqs
(a)
A
BILL
VIII 1000891. 81
To define the jurisdiction of United States courts in suits against
la
foreign states, the circumstances in which foreign states are
immune from suit and in which execution may not be levied
on their property, and for other purposes.
(d)
1
Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That this Act may be cited as the "Foreign Sovereign
4 Immunities Act of 1975 1976"
5
SEC. 2. (a) That chapter 85 of title 28, United States
6 Code, is amended by inserting immediately before section
7 1331 the following new section:
8 "§ 1330. Actions against foreign states (S)
"
9
(a) The district courts shall have original jurisdiction
I
2
3
1
without regard to amount in controversy of any nonjury
1
(3) citizens of different States and in which citi-
2 civil action against a foreign state as defined in section 1603
2
zens or subjects of a foreign state are additional parties;
3 (a) of this title as to any claim for relief in personam with
3
and
4 respect to which the foreign state is not entitled to immunity
(4) a foreign state, defined in section 1603 (a) of
5 either under sections 1605-1607 of this title or under any
5
this title, as plaintiff and citizens of a State or of different
6 applicable international agreement.
6
States.
7
(b) Personal jurisdiction over a foreign state shall
SEC. 4. (a) That title 28, United States Code, is
8 exist as to every claim for relief over which the district
8 amended by inserting after chapter 95 the following new
9 courts have jurisdiction under subsection (a) where service
9
chapter:
10 of process has been made under section 1608 of this title.
10
"Chapter 97.-JURISDICTIONAL IMMUNITIES OF
11
" (c) For purposes of subsection (b), an appearance by
11
FOREIGN STATES
12 a foreign state does not confer personal jurisdiction with
"Sec.
"1602. Findings and declaration of purpose.
13 respect to any claim for relief not arising out of any trans-
"1603. Definitions.
"1604. Immunity of a foreign state from jurisdiction.
14 action or occurrence enumerated in sections 1605-1607 of
"1605. General exceptions to the jurisdictional immunity of a foreign
state.
"1606. Claims involving the public debt.
15
this
title.
"1606. Extent of liability.
"1607. Counterclaims.
16
(b) By inserting in the chapter analysis of that chapter
"1608. Service of process; time to answer; default.
"1608. Service; time to answer default.
17 before-
"1609. Immunity from attachment and execution of property of a foreign
state.
1331. Federal question; amount in controversy; costs.'
"1610. Exceptions to the immunity from attachment or execution.
81
"1611. Certain types of property immune from execution.
18 the following new item:
12 1602. Findings and declaration of purpose
"1330. Actions against foreign states.".
OS
13
SEC. 3. That section 1332 of title 28, United States
"The Congress finds that the determination by United
19
20 Code, is amended by striking subsections (a) (2) and (3)
14 States courts of the claims of foreign states to immunity from
15 the jurisdiction of such courts would serve the interests of
21 and substituting in their place the following:
22
" (2) citizens of a State and citizens or subjects of
16 justice and would protect the rights of both foreign states
17 and litigants in United States courts. Under international
23
a foreign state;
4
5
1 law, states are not immune from the jurisdiction of foreign
(3) which is neither a citizen of a State of
2 courts insofar as their commercial activities are concerned,
2
the United States as defined in section 1332 (c)
3 and their commercial property may be levied upon for the
3
and (d) of this title, nor created under the laws of
4 satisfaction of judgments rendered against them in con-
any third country.
"
5 nection with their commercial activities. Claims of foreign
5
(c) The 'United States' includes all territory and
6 states to immunity should henceforth be decided by courts
6
waters, continental or insular, subject to the jurisdiction
7 of the United States and of the States in conformity with the
7
of
the
United
States.
8 principles set forth in this chapter.
8
(d) A commercial activity' means either a regu-
9 "§ 1603. Definitions
9 lar course of commercial conduct or a particular commer-
10
"For purposes of this chapter
10
cial transaction or act. The commercial character of an
OF
11
(a) A 'foreign state, except as used in sections
11
activity shall be determined by reference to the nature
12
1606 and section 1608 of this title, includes a political
12
of the course of conduct or particular transaction or act,
13
subdivision of a foreign state or an agency or in-
13
rather than by reference to its purpose.
14
strumentality of a foreign state as defined in subsection
14 (e) A 'commercial activity carried on in the
15
(b)
15
United States by a foreign state' means commercial ac-
16
" (b) An 'agency and or instrumentality of a for-
16
tivity carried on by such state and having substantial
17
eign state' means any entity
17
contact with the United States
18
(1) which is a separate legal person, corpo-
18 "§ 1604. Immunity of a foreign state from jurisdiction
19
rate or otherwise, and
19
"Subject to existing and future international agreements
20
" (2) which is an organ of a foreign state or
20 to which the United States is a party at the time of enactment
21
political subdivision thereof, or a majority of whose
21 of this Act a foreign state shall be immune from the jurisdie-
22
shares or other ownership interest is owned by a
22 tion of the courts of the United States and of the States ex-
23
foreign state or political subdivision thereof, and
23 cept as provided in sections 1605 to 1607 of this chapter.
6
7
11
"§ 1605. General exceptions to the jurisdictional immunity
1
tality of the foreign state and that agency or instrumen-
(2)
of a foreign state
2
tality is engaged in a commercial activity in the United
13
(a) foreign state shall not be immune from the
3
States;
4 jurisdiction of courts of the United States or of the States
(4) in which rights in property in the United
5
in any case
5
States acquired by succession or gift or rights in immov-
6
(1) in which the foreign state has waived its im-
6
able property situated in the United States are in issue;
7
munity either explicitly or by implication, notwithstand-
7
or
8
ing any withdrawal of the waiver which the foreign
8
(5) not otherwise encompassed in paragraph (2)
9
state may purport to effect except in accordance with the
9
above, in which money damages are sought against a
10
terms of the waiver;
10
foreign state for personal injury or death, or damage to
11
(2) in which the action is based upon a commer-
11
or loss of property, occurring in the United States and
12
cial activity carried on in the United States by the foreign
12
caused by the tortious act or omission of that foreign
13
state; or upon an act performed in the United States in
13
state or of any official or employee of that foreign state
14
14
connection with a commercial activity of the foreign
while acting within the scope of his office or employ-
15
15
state elsewhere; or upon an act outside the territory of
ment; except this paragraph shall not apply to-
16
16
the United States in connection with a commercial ac
(A) any claim based upon the exercise or
17
17
tivity of the foreign state elsewhere and that act causes
performance or the failure to exercise or perform
18
18
a
direct effect in the United States;
a discretionary function regardless of whether the
19
19
discretion be abused, or
(3) in which rights in property taken in violation
20
20
of international law are in issue and that property or any
(B) any claim arising out of malicious prose-
21
21
cution, abuse of process, libel, slander, misrepresen-
property exchanged for such property is present in the
22
22
United States in connection with a commercial activity
tation, deceit, or interference with contract rights.
23
23
carried on in the United States by the foreign state; or
" (b) A foreign state shall not be immune from the juris-
24
24 diction of the courts of the United States in any case in which
that property or any property exchanged for such prop-
25
25 a suit in admiralty is brought to enforce a maritime lien
erty is owned or operated by an agency or instrumen-
8
9
1 against a vessel or cargo of the foreign state, which maritime
1 deemed to be an in personam claim against the foreign state
2 lien is based upon a commercial activity of the foreign state:
2 which at that time owns the vessel or cargo involved: Pro-
3 Provided, That-
3 vided, That a court may not award judgment against the
4
(1) notice of the suit is given by service delivery
4 foreign state in an amount greater than the value of the vessel
5
of a copy of the summons and of the complaint to the
5 or cargo upon which the maritime lien arose, such value to
6
person, or his agent, having possession of the vessel or
6 be determined as of the time notice is served under subsection
7
cargo against which the maritime lien is asserted; but
7 (b) (1) of this section.
8
such notice shall not be deemed to have been served
8 "I 1606. Extent of liability
9
delivered, nor may it thereafter be served delivered, if the
9
"(c) As to any claim for relief with respect to which
10
vessel or cargo is arrested pursuant to process obtained
10 a foreign state is not entitled to immunity under this section
11
on behalf of the party bringing the suit-unless the party
11 or under section 1606 section 1605 or 1607 of this chapter,
12
was unaware that the vessel or cargo of a foreign state
12 the foreign state shall be liable in the same manner and to
13
was involved, in which event the service of process of
13 the same extent as a private individual under like circum-
14
arrest shall be deemed to constitute valid service delivery
14 stances; but a foreign state itself, as distinguished from a
15
of such notice; and
15 political subdivision thereof or from except for an agency or
16
(2) notice to the foreign state of the commence-
16 instrumentality thereof of a foreign state, shall not be liable
17
ment of suit as provided in section 1608 of this title is
17 in tort for interest prior to judgment or shall not be liable
18
initiated within ten days either of the service of process
18 for punitive damages; if, however, in any case wherein
19
delivery of notice as provided in subsection (b) (1) of
19 death was caused, the law of the place where the action
20
this section or, in the case of a party who was unaware
20 or omission occurred provides, or has been construed to
21
that the vessel or cargo of a foreign state was involved,
21 provide, for damages only punitive in nature, the foreign
22
of the date such party determined the existence of the for-
22 state shall be liable for actual or compensatory damages
23
eign state's interest.
23 measured by the pecuniary injuries resulting from such death
24 "Whenever notice is served delivered under subsection (b)
24 which were incurred by the persons for whose benefit the
25 (1) of this section, the maritime lien shall thereafter be
25 action was brought.
H.R. 11315-2
10
11
1
1606. Claims involving the public debt
1
of this chapter had such claim been brought in a separate
"
2
(a) For purposes of this section, a 'forcign state' shall
2
action against the foreign state; or
3 not include a political subdivision of a foreign state or an
3
"
(b) arising out of the transaction or occurrence
4
agency or instrumentality of a foreign state.
4
that is the subject matter of the claim of the foreign
5
(b) Notwithstanding the provisions of section 1605
5
state; or
6 of this chapter, a foreign state shall be immune from the
6
"
(c) to the extent that the counterclaim does not
7 jurisdiction of the courts of the United States and of the
7
seek relief exceeding in amount or differing in kind from
8 States in any case relating to debt obligations incurred for
8
that sought by the foreign state.
9 general governmental purposes unless
9
1608. Service of process; time to answer; default
10
(1) the foreign state has waived its immunity
10
Subject to existing and future international agreements
11
explicitly, notwithstanding any withdrawal of the
11 to which the United States is a party
12
waiver which the foreign state may purport to effect
12
(a) service in the courts of the United States and
13
except in accordance with the terms of the waiver; or
13
of the States shall be made upon a foreign state or
14
(2) the case arises under provisions codified as
14
political subdivision of a foreign state:
15
sections 77a through 80b 21 of title 15, United States
15
(1) by delivering & copy of the summons and
16
Code, as amended, or any other statute which may here-
16
of the complaint in accordance with any special
17
after be administered by the United States Securities
17
arrangement for service between the plaintiff and
18
and Exchange Commission.
18
the foreign state or political subdivision; or
19
1607. Counterclaims
19
(2) if no special arrangement exists, and if
20
"In any action brought by a foreign state, or in which
20
service is reasonably calculated to give actual
21 a foreign state intervenes, in a court of the United States
21
notice
22 or of a State, the foreign state shall not be accorded immunity
22
(A) by service of a copy of the summons
23
with respect to any counterclaim
23
and of the complaint, together with a transla-
"
24
(a) for which a foreign state would not be entitled
24
tion into the official language of the foreign
25
to immunity under sections 1605 and 1606 section 1605
25
state, as directed by an authority of the foreign
12
13
1
state or of the political subdivision in response
1
proceeding in question that it prefers that serv-
2
to a letter rogatory or request, or
2
ice not be made through diplomatic channels,
3
"(B) by sending a copy of the summons
3
by sending two copies of the summons and of the
4
and of the complaint, together with a transla-
4
complaint, together with a translation into the official
5
tion into the official language of the foreign
5
language of the foreign state, by any form of mail
6
state, by any form of mail requiring a signed
6
requiring a signed receipt, to be addressed and dis-
7
receipt, to be addressed and dispatched by the
7
patched by the clerk of the court, to the Secretary
8
clerk of the court to the official in charge of the
8
of State at Washington, District of Columbia, to
9
foreign affairs of the foreign state which is,
9
the attention of the Director of Special Consular
10
or whose political subdivision is, named in the
10
Services, and the Secretary shall send one copy
11
complaint; or
11
through diplomatic channels to the foreign state and
12
(3) if proof of service is not made within
12
shall send a certified copy of the diplomatic note
13
sixty days after service has been initiated under
13
to the clerk of the court in which the action is
14
paragraph (1) or (2) of this subsection, and if
14
pending. The Secretary shall maintain and publish
15
(A) the claim for relief arises out of an
15
in the Federal Register a list of foreign states upon
16
activity or act in the United States of a diplo-
16
which service may be made under subparagraphs
17
matie or consular representative of the foreign
17
(B) and (C) of this paragraph, and such list shall
18
state for which the foreign state is not immune
18
be conclusive for purposes of subparagraphs (B)
19
from jurisdiction under section 1605 of this
19
and (C)
20
title, or
20
(b) service in the courts of the United States and
21
"(B) the foreign state uses diplomatic
21
of the States shall be made upon an agency or instrumen-
22
channels for service upon the United States or
22
tality of a foreign state:
23
any other foreign state, or
23
(1) by delivering a copy of the summons and
24
(C) the foreign state has not notified the
24
of the complaint in accordance with any special ar
25
Secretary of State prior to the institution of the
H.R. 11315
14
15
1
rangement for service between the plaintiff and the
1
sistent with the law of the place where service
2
agency or instrumentality; or
2
is to be made;
3
(2) if no special arrangement exists, by de-
3
(e) for the purposes of this section, service of
4
livering a copy of the summons and of the com-
4
process shall be deemed to have been made
5
plaint to an officer, a managing or general agent or
5
(1) in the case of subsections (a) (1) and
6
to any other agent authorized by appointment or
6
(b) (1), when delivered in accordance with the
7
by law to receive service of process in the United
7
terms of the special arrangement;
8
States; or
8
(2) in the case of subsections (a) (2) (B)
9
(3) if service cannot be made under para-
9
and (b) (3) when delivered as directed by an
10
graph (1) or (2) of this subsection, and if service
10
authority of the foreign state or political subdivision,
11
is reasonably calculated to give actual notice-
11
(3) in the case of subsections (a) (2) (B)
12
(A) by service of a copy of the summons
12
and (b) (3) (B), when received abroad by mail, as
13
and of the complaint, together with a trans-
13
evideneed by the returned, signed receipt;
14
lation into the official language of the foreign
14
(4) in the case of subsection (b) (2), when
15
state, as directed by an authority of the foreign
15
delivered to an officer, managing or general agent or
16
state or of a political subdivision in response to
16
appointed agent in the United States;
17
a letter rogatory or request, or
17
(5) in the case of subsection (a) (3) when
18
(B) by sending a copy of the summons
18
sent through diplomatic channels, as evidenced by
19
and of the complaint, together with a trans-
19
a certified copy of the diplomatic note of trans-
20
lation into the official language of the foreign
20
mittal;
21
state, by any form of mail requiring a signed re-
21
(6) in the case of subsection (b) (3) (C),
22
ceipt, to be addressed and dispatched by the
22
when served as directed by order of the court;
23
clerk of the court to the agency or instrumen-
23
(d) in any action brought in a court of the United
24
tality to be served, or
24
States or of a State, a foreign state, a political subdivision
25
(C) as directed by order of the court con-
25
thereof, or an agency or instrumentality of a foreign state
16
17
1
shall serve an answer or other responsive pleading to
1
(1) or (2), by sending a copy of the summons and com-
2
the complaint or to a cross claim, or a reply to a coun-
2
plaint and a notice of suit, together with a translation of
3
terclaim, within sixty days after the service of the plead-
3
each into the official language of the foreign state, by any
4
ing in which a claim is asserted, and
4
form of mail requiring a signed receipt, to be addressed
5
(c) no judgment by default shall be entered by a
5
and dispatched by the clerk of the court to the head of the
6
court of the United States or of a State against a foreign
6
ministry of foreign affairs of the foreign state concerned,
7
state, a political subdivision thereof, or an agency or
7
or
8
instrumentality of a foreign state, unless the claimant
8
"(4) if service cannot be made within 30 days under
9
establishes his claim or right to relief by evidence satis-
9
paragraph (3), by sending two copies of the summons
10
factory to the court. A copy of any such default judgment
10
and complaint and a notice of suit, together with a trans-
11
shall be sent to the foreign state or political subdivision
11
lation of each into the official language of the foreign
12
in the manner prescribed for service of process in this
12
state, by any form of mail requiring a signed receipt, to
13
section.
13
be addressed and dispatched by the clerk of the court to
14
14
"(a) Service in the courts of the United States and of
the Secretary of State in Washington, District of Colum-
15
15
the States shall be made upon a foreign state or political sub-
bia, to the attention of the Director of Special Consular
16
16 division of a foreign state:
Services-and the Secretary shall transmit one copy of
17
17
(1) by delivery of a copy of the summons and com-
the papers through diplomatic channels to the foreign
18
18
plaint in accordance with any special arrangement for
state and shall send to the clerk of the court a certified
19
19
service between the plaintiff and the foreign state or po-
copy of the diplomatic note indicating when the papers
20
20
litical subdivision; or
were transmitted.
21
"(2) if no special arrangement exists, by delivery
21 As used in this subsection, a 'notice of suit' shall mean a
22
22
of a copy of the summons and complaint in accordance
notice addressed to a foreign state and in a form prescribed
23
23
with an applicable international convention on service of
by the Secretary of State by regulation.
24
24
judicial documents; or
(b) Service in the courts of the United States and of
25
(3) if service cannot be made under paragraphs
18
19
1 the States shall be made upon an agency or instrumentality
1
"(C) as directed by order of the court consistent
2 of a foreign state:
2
with the law of the place where service is to be made.
3
"(1) by delivery of a copy of the summons and com-
3
"(c) Service shall be deemed to have been made-
4
plaint in accordance with any special arrangement for
4
"(1) in the case of service under subsection (a) (4),
5
service between the plaintiff and the agency or instru-
5
as of the date of transmittal indicated in the certified copy
6
mentality; or
6
of the diplomatic note; and
7
"(2) if no special arrangement exists, by delivery
7
"(2) in any other case under this section, as of the
8
of a copy of the summons and complaint either to an
8
date of receipt indicated in the certification, signed and
9
officer, a managing or general agent, or to any other
9
returned postal receipt, or other proof of service appli-
10
agent authorized by appointment or by law to receive
10
cable tothe method of service employed.
11
service of process in the United States; or in accordance
11
"(d) In any action brought in a court of the United
12
with an applicable international convention on service of
12 States or of a State, a foreign state, a political subdivision
13
judicial documents; or
13 thereof, or an agency or instrumentality of a foreign state
14
"(3) if service cannot be made under paragraphs
14 shall serve an answer or other responsive pleading to the com-
15
(1) or (2), and if reasonably calculated to give actual
15 plaint within sixty days after service has been made under this
16
notice, by delivery of a copy of the summons and com-
16 section.
17
plaint, together with a translation of each into the official
17
"(e) No judgment by default shall be entered by a court
18
language of the foreign state-
18 of the United States or of a State against a foreign state, a
19
"(A) as directed by an authority of the foreign
19 political subdivision thereof, or an agency or instrumen-
20
state or political subdivision in response to a letter
20 tality of a foreign state, unless the claimant establishes his
21
rogatory or request or
21 claim or right to relief by evidence satisfactory to the court. A
22
"(B) by any form of mail requiring a signed
22 copy of any such default judgment shall be sent to the foreign
23
receipt, to be addressed and dispatched by the clerk
23 state or political subdivision in the manner prescribed for
24
of the court to the agency or instrumentality to le
24 service in this section.
25
served, or
(8)
20
21
1
§ 1609. Immunity from attachment and execution of prop-
1
ing rights in property which has been taken in violation
2
erty of a foreign state
2
of international law or which has been exchanged for
3
"Subject to existing and future international agreements
3
property taken in violation of international law, or
4 to which the United States is a party at the time of enact-
4
" (4) the execution relates to a judgment establish-
5 ment of this Act the property in the United States of a foreign
5
ing rights in property
6 state shall be immune from attachment and from arrest and
6
(A) which is acquired by succession or gift,
7 execution except as provided in sections 1610 and 1611 of
7
or
8 this chapter.
8
" (B) which is immovable and situated in the
9
"§ 1610. Exceptions to the immunity from attachment or
9
United States: Provided, That such property is not
10
execution
10
used for purposes of maintaining a diplomatic or
11
"
(a) The property in the United States of a foreign
11
consular mission or the residence of the Chief of such
12 state, as defined in section 1603 (a) of this chapter, used
12
mission, or
13 for a commercial activity in the United States, shall not be
13
" (5) the property consists of any contractual obli-
14
immune from attachment in aid of execution, or from execu-
14
gation or any proceeds from such a contractual obli-
15
tion, upon a judgment entered by a court of the United
15
gation to indemnify or hold harmless the foreign state
16 States or of a State after the effective date of this Act, if-
16
or its employees under a policy of automobile or other
17
(1) the foreign state has waived its immunity from
17
liability or casualty insurance covering the claim which
18
attachment in aid of execution or from execution either
18
merged into the judgment.
(b)
19
explicitly or by implication, notwithstanding any with-
19
(b) In addition to subsection (a), any property in
20
drawal of the waiver the foreign state may purport to
20 the United States of an agency or instrumentality of a for-
21
effect except in accordance with the terms of the waiver,
21 eign state engaged in commercial activity in the United
22
or
22 States shall not be immune from attachment in aid of execu-
23
(2) the property is or was used for the commercial
23 tion, or from execution, upon a judgment entered by a court
24
activity upon which the claim is based, or
24 of the United States or of a State after the effective date of
25
" (3) the execution relates to a judgment establish-
25 this Act, if-
22
23
1
(1) the agency or instrumentality has waived its
immunity from attachment prior to judgment, notwith-
2
immunity from attachment in aid of execution or from
2
standing any withdrawal of the waiver the foreign state
3
execution either explicitly or implicitly, notwithstand-
3
may purport to effect except in accordance with the
4
ing any withdrawal of the waiver the agency or instru-
4
terms of the waiver, and
5
mentality may purport to effect except in accordance
5
(2) the purpose of the attachment is to secure
6g
with the terms of the waiver, or
6
satisfaction of a judgment that has been or may ulti-
7
" (2) the judgment relates to a claim for which the
7
mately be entered against the foreign state, and not to
8
agency or instrumentality is not immune by virtue of
S
obtain jurisdiction.
9
section 1605 (a) (2), (3), or (5), or 1605 (b) of this
9
"§ 1611. Certain types of property immune from execution
10
chapter, regardless of whether the property is or was
10
" (a) Notwithstanding the provisions of section 1610
11
used for the activity upon which the claim is based.
11 of this chapter, the property of those organizations designated
12
" (c) No attachment or execution referred to in sub-
12 by the President as being entitled to enjoy the privileges,
13 sections (a) and (b) of this section shall be permitted until
13 exemptions, and immunities provided by the International
14 the court has ordered such attachment and execution after
14 Organizations Immunities Act shall not be subject to attach-
15 having determined that a reasonable period of time has
15 ment or any other judicial process impending impeding the
16 elapsed following the entry of judgment and the giving of
16 disbursement of funds to, or on the order of, a foreign state
17 any notice required under section 1608 (e) of this chapter.
17 as the result of an action brought in the courts of the United
18
(d) The property of a foreign state, as defined in sec-
18 States or of the States.
19 tion 1603 (a) of this chapter, used for a commercial activity
19
"
(b) Notwithstanding the provisions of section 1610
20 in the United States, shall not be immune from attachment
20 of this chapter, the property of a foreign state shall be
21 prior to the entry of judgment in any action brought in a
21 immune from attachment and from execution, if-
22 court of the United States or of a State, or prior to the elapse
22
" (1) the property is that of a foreign central bank
23 of the period of time provided in subsection (c) of this
23
or monetary authority held for its own account, unless
24 section, if-
24
such bank or authority, or its parent foreign government,
25
" (1) the foreign state has explicitly waived its
25
has explicitly waived its immunity from attachment in
24
25
1
aid of execution, or from execution, notwithstanding any
1
or cargo of a foreign state is situated, if the claim is
2
withdrawal of the waiver which the bank, authority or
2
asserted under section 1605 (b) of this title
3
government may purport to effect except in accordance
3
" (3) in any judicial district in which the agency or
4
with the terms of the waiver; or
4
instrumentality is licensed to do business or is doing
5
(2) the property is, or is intended to be, used in
5
business, if the action is brought against an agency or
6
connection with a military activity and
6
instrumentality of a foreign state as defined in section
7
(A) is of a military character, or
7
1603 (b) of this title; or
8
"
(B) is under the control of a military au-
8
(4) in the United States District Court for the
9
thority or defense agency."
9
District of Columbia if the action is brought against a
10
(b) That the analysis of "PART IV JURISDICTION AND
10
foreign state or political subdivision thereof.
11 Venue" of title 28, United States Code, is amended by in-
11
SEC. 6. That section 1441 of title 28, United States
12
serting after-
12 Code, is amended by adding at the end thereof the following
"95. Customs Court.".
13
new subsection:
13 the following new item:
14
" (d) Any civil action brought in a State court against
"97. Jurisdictional Immunities of Foreign States.".
15 a foreign state as defined in section 1603 (a) of this title
14
SEC. 5. That section 1391 of title 28, United States
16 may be removed by the foreign state to the district court of
15 Code, is amended by adding at the end thereof the follow-
17 the United States for the district and division embracing
16 ing new subsection:
18 the place where such action is pending. Upon removal the
17
(f) A civil action against a foreign state as defined
19 action shall be tried by the court without jury. Where re-
18 in section 1603 (a) of this title may be brought-
20 moval is based upon this subsection, the time limitations of
19
" (1) in any judicial district in which a substantial
21 section 1446 (b) of this chapter may be enlarged at any time
20
part of the events or omissions giving rise to the claim
22 for cause shown.".
21
occurred, or a substantial part of property that is the sub-
23
SEC. 7. If any provision of this Act or the application
22
ject of the action is situated;
24 thereof to any foreign state is held invalid, the invalidity
23
(2) in any judicial district in which the vessel
25 does not affect other provisions or applications of the Act
26
1 which can be given effect without the invalid provision or
2 application, and to this end the provisions of this Act are
3 severable. doides **n necordange
guiob SEC. 8. This Act shall take effect ninety days after the
5 date of its enactment. used àn
aditoes registration
a
7
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i
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betting ed of benebio bas nolnU
effit and to (a) 805 at bouds otela regiot B an
10 twoo foritaib adt of etota пріэто! office zil the
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guioridme noreivib birs fortfaib odi the 201818 beturU odt 71
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edit 16 Isvom97 noqU .guibneq ai moiton done этобш costq adt 81
-01 wiedW VIVE twodliw twoo off vd berwing noitos defined er
17
to 9mit off aid) пофи board 21 Isvom OS
18 in 1603 (n) of this title may be brought-
smit 19 VIIS to begtslne in 9d any VBM indicial ređqedo district aid 10 in (d) 041 8 substantial
20
part of the events or omissions giving rise to the claim
.awode 98080 TOP
noitsoilqqe 21, odt 10 YEA substantial einh to noisivozq nart of VIIG property II IT that pas is the sub-
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indicial district in which the vessel GS
Union Calendar No. 766
94TH CONGRESS
2D SESSION
H. R. 11315
[Report No. 94-1487]
A BILL
which can be-given effect the invalid provision or
application, and to this end the of this Act are
Sec. 8. This Act shall take effect ninety days after the
To define the jurisdiction of United States
courts in suits against foreign states, the
circumstances in which foreign states are
immune from suit and in which execution
may not be levied on their property, and for
other purposes.
By Mr. RODINO and Mr. HUTCHINSON
DECEMBER 19, 1975
Referred to the Committee on the Judiciary
SEPTEMBER 9, 1976
Reported with amendments, committed to the Com-
severable.
date of its enactment
mittee of the Whole House on the State of the
Union, and ordered to be printed
2
SEPTEMBER 10, 1976
BILL STATUS OFFICE
PAGE 1
U.S. HOUSE OF REPRESENTATIVES
94TH CONG. STATUS PROFILE FOR H.R. 11315
OFFICIAL TITLE
FOREIGN SOVEREIGN IMMUNITIES ACT
SPONSOR
RODINO
DATE INTRODUCED... DEC 19, 75
HOUSE COMMITTEE... THE JUDICIARY
TITLE
A BILL TO DEFINE THE JURISDICTION OF UNITED STATES
COURTS IN SUITS AGAINST FOREIGN STATES, THE
CIRCUMSTANCES IN WHICH FOREIGN STATES ARE IMMUNE
FROM SUIT AND IN WHICH EXECUTION MAY NOT BE LEVIED
ON THEIR PROPERTY, AND FOR OTHER PURPOSES
CO-SPONSORS
HUTCHINSON.
DEC 19, 75 REFERRED TO HOUSE COMMITTEE ON THE JUDICIARY.
DEC 31, 75 REFERRED TO SUBCOMMITTEE ON ADMIN LAW & GOVERNMENTAL
RELATIONS.
JUN 2, 76 FIRST DAY OF SUBCOMMITTEE HEARINGS.
JUN 4, 76 FINAL DAY OF SUBCOMMITTEE HEARINGS.
SEP 1, 76 FIRST DAY OF SUBCOMMITTEE CONSIDERATION AND MARK-UP
SESSION.
SEP 1, 76 FINAL DAY OF SUBCOMMITTEE CONSIDERATION AND MARK-UP
SESSION.
SEP 1, 76 FORWARDED BY SUBCOMMITTEE TO FULL COMMITTEE AMENDED.
SEP 9, 76 REPORTED TO HOUSE AMENDED BY HOUSE COMMITTEE ON THE
JUDICIARY. REPORT NO: 94-1487.
SEP 9, 76 PLACED ON UNION CALENDAR, NO: 766.
SEPTEMBER 2, 1976
BILL STATUS OFFICE
PAGE 1
U.S. HOUSE OF REPRESENTATIVES
94TH CONG. STATUS PROFILE FOR H.R.11315
OFFICIAL TITLE
FOREIGN SOVEREIGN IMMUNITIES ACT
SPONSOR
RODINO
DATE INTRODUCED DEC 19, 75
HOUSE COMMITTEE THE JUDICIARY
TITLE
A BILL TO DEFINE THE JURISDICTION OF UNITED STATES
COURTS IN SUITS AGAINST FOREIGN STATES, THE
CIRCUMSTANCES IN WHICH FOREIGN STATES ARE IMMUNE
FROM SUIT AND IN WHICH EXECUTION MAY NOT BE LEVIED
ON THEIR PROPERTY, AND FOR OTHER PURPOSES
CO-SPONSORS
HUTCHINSON.
DEC 19, 75 REFERRED TO HOUSE COMMITTEE ON THE JUDICIARY.
DEC 31, 75 REFERRED TO SUBCOMMITTEE ON ADMIN LAW E GOVERNMENTAL
RELATIONS.
JUN 2, 76 FIRST DAY OF SUBCOMMITTEE HEARINGS.
JUN 4, 76 FINAL DAY OF SUBCOMMITTEE HEARINGS.
SEP 1, 76 FIRST DAY OF SUBCOMMITTEE CONSIDERATION AND MARK-UP
SESSION.
SEP 1, 76 FINAL DAY OF SUBCOMMITTEE CONSIDERATION AND MARK-UP
SESSION.
SEP 1, 76 FORWARDED BY SUBCOMMITTEE TO FULL COMMITTEE AMENDED.
No. 36
94TH CONGRESS
1ST SESSION
H. R. 11315
JURISDICATION-U. S. COURTS IN SUITS
AGAINST FOREIGN COUNTRIES
A BILL
To define the jurisdiction of United States
courts in suits against foreign states, the
circumstances in which foreign states are
immune from suit and in which execution
may not be levied on their property, and for
other purposes.
By Mr. RODINO and Mr. HUTCHINSON
DECEMBER 19, 1975
Referred to the Committee on the Judiciary