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Current through P.L. 105-394, approved 11-13-1998.
§ 1602. Findings and declaration of purpose
The Congress finds that the determination by 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 international law, states are not immune from the jurisdiction of
foreign courts insofar 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.
§ 1603. Definitions
For purposes of this chapter --
(a) A "foreign state", except as used in section 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 or 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 section
1332(c) and (d) of this title, nor created under the laws of any third country.
(c) The "United States" includes all territory and waters,
continental or insular, subject to the jurisdiction of the United States.
(d) A "commercial activity" means either a regular course of
commercial conduct or a particular commercial transaction or act. The commercial character
of an activity shall be determined by reference to the nature of the course of conduct or
particular transaction or act, rather than by reference to its purpose ,
(e) A "commercial activity carried on in the United States by a foreign state"
means commercial activity carried on by such state and having substantial contact with the
United States.
§ 1604. Immunity of a foreign state from jurisdiction
Subject to existing international agreements to which the United States is a party at
the time of enactment of this Act a foreign state shall be immune from the jurisdiction of
the courts of the United States and of the States except as provided in sections 1605 to
1607 of this chapter.
§ 1605. General exceptions to the jurisdictional immunity of a foreign state
(a) A foreign state shall not be immune from the jurisdiction of courts of the United
States or of the States in any case --
(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 elsewhere 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
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,
(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 property, occuring 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 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;
(6) in which the action is brought, either to enforce an agreement made by the foreign
state with or for the benefit of a private party to submit to arbitration all or any
differences which have arisen or which may arise between the parties with respect to a
defined legal relationship, whether contractual or not, concerning a subject matter
capable of settlement by arbitration under the laws of the United States, or to confirm an
award made pursuant to such an agreement to arbitrate, if
(A) the arbitration takes place or is intended to take place in the United States,
(B) the agreement or award is or may be governed by a treaty or other international
agreement in force for the United States calling for the recognition and enforcement of
arbitral awards,
(C) the underlying claim, save for the agreement to arbitrate, could have been brought
in a United States court under this section or section 1607, or
(D) paragraph (1) of this subsection is otherwise applicable; or
(7) not otherwise covered by paragraph (2), in which money damages are sought against a
foreign state for personal injury or death that was caused by an act of torture,
extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material
support or resources (as defined in section 2339A of title 18) for such an act if such act
or provision of material support is engaged in by an official, employee, or agent of such
foreign state while acting within the scope of his or her office, employment, or agency,
except that the court shall decline to hear a claim under this paragraph --
(A) if the foreign state was not designated as a state sponsor of terrorism under
section 6(j) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)) or section
620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371) at the time the act occurred,
unless later so designated as a result of such act; and
(B) even if the foreign state is or was so designated, if --
(i) the act occurred in the foreign state against which the claim has been brought and
the claimant has not afforded the foreign state a reasonable opportunity to arbitrate the
claim in accordance with accepted international rules of arbitration; or
(ii) neither the claimant nor the victim was a national of the United States (as that
term is defined in section 101(a)(22) of the Immigration and Nationality Act) when the act
upon which the claim is based occurred.
(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 delivery 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; and if the vessel or cargo is arrested pursuant to
process obtained on behalf of the party bringing the suit, the service of process of
arrest shall be deemed to constitute valid delivery of such notice, but the party bringing
the suit shall be liable for any damages sustained by the foreign state as a result of the
arrest if the party bringing the suit had actual or constructive knowledge that the vessel
or cargo of a foreign state was involved; 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 either of the delivery of notice as provided in
paragraph (1) of this subsection or, in the case of a party who was unaware that the
vessel or cargo of a foreign state was involved, of the date such party determined the
existence of the foreign state's interest.
(c) Whenever notice is delivered under subsection (b)(1), the suit to enforce a
maritime lien shall thereafter proceed and shall be heard and determined according to the
principles of law and rules of practice of suits in rem whenever it appears that, had the
vessel been privately owned and possessed, a suit in rem might have been maintained. A
decree against the foreign state may include costs of the suit and, if the decree is for a
money judgment, interest as ordered by the court, except that the 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 shall be determined as of the time
notice is served under subsection (b)(1). Decrees shall be subject to appeal and revision
as provided in other cases of admiralty and maritime jurisdiction. Nothing shall preclude
the plaintiff in any proper case from seeking relief in personam in the same action
brought to enforce a maritime lien as provided in this section.
(d) A foreign state shall not be immune from the jurisdiction of the courts of the
United States in any action brought to foreclose a preferred mortgage, as defined in the
Ship Mortgage Act, 1920 (46 U.S.C. 911 and following). Such action shall be brought,
heard, and determined in accordance with the provisions of that Act and in accordance with
the principles of law and rules of practice of suits in rem, whenever it appears that had
the vessel been privately owned and possessed a suit in rem might have been maintained.
(e) For purposes of paragraph (7) of subsection (a) --
(1) the terms "torture" and "extrajudicial killing"
have the meaning given those terms in section 3 of the Torture Victim Protection Act of
1991;
(2) the term "hostage taking" has the meaning given that term in
Article 1 of the International Convention Against the Taking of Hostages; and
(3) the term "aircraft sabotage" has the meaning given that term in
Article I of the Convention for the Suppression of Unlawful Acts Against the Safety of
Civil Aviation.
(f) No action shall be maintained under subsection (a)(7) unless the action is
commenced not later than 10 years after the date on which the cause of action arose. All
principles of equitable tolling, including the period during which the foreign state was
immune from suit, shall apply in calculating this limitation period.
(g) Limitation on discovery. --
(1) In general.--
(A) Subject to paragraph (2), if an action is filed that would otherwise be barred by
section 1604, but for subsection (a)(7), the court, upon request of the Attorney General,
shall stay any request, demand, or order for discovery on the United States that the
Attorney General certifies would significantly interfere with a criminal investigation or
prosecution, or a national security operation, related to the incident that gave rise to
the cause of action, until such time as the Attorney General advises the court that such
request, demand, or order will no longer so interfere.
(B) A stay under this paragraph shall be in effect during the 12-month period beginning
on the date on which the court issues the order to stay discovery. The court shall renew
the order to stay discovery for additional 12-month periods upon motion by the United
States if the Attorney General certifies that discovery would significantly interfere with
a criminal investigation or prosecution, or a national security operation, related to the
incident that gave rise to the cause of action.
(2) Sunset. --
(A) Subject to subparagraph (B), no stay shall be granted or continued in effect under
paragraph (1) after the date that is 10 years after the date on which the incident that
gave rise to the cause of action occurred.
(B) After the period referred to in subparagraph (A), the court, upon request of the
Attorney General, may stay any request, demand, or order for discovery on the United
States that the, court finds a substantial likelihood would --
(i) create a serious threat of death or serious bodily injury to any person;
(ii) adversely affect the ability of the United States to work in cooperation with
foreign and international law enforcement agencies in investigating violations of United
States law; or
(iii) obstruct the criminal case related to the incident that gave rise to the cause of
action or undermine the potential for a conviction in such case.
(3) Evaluation of evidence. -- The court's evaluation of any request for a stay under
this subsection filed by the Attorney General shall be conducted ex parte and in camera.
(4) Bar on motions to dismiss. -- A stay of discovery under this subsection shall
constitute a bar to the granting of a motion to dismiss under rules 12(b)(6) and 56 of the
Federal Rules of Civil Procedure.
(5) Construction. -- Nothing in this subsection shall prevent the United States from
seeking protective orders or asserting privileges ordinarily available to the United
States.
§ 1606. Extent of liability
As to any claim for relief with respect to which a foreign state is not entitled to
immunity under section 1605 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 except for an agency or instrumentality thereof shall not be liable
for punitive damages, except any action under section 1605(a)(7) or 1610(f); 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.
§ 1608. Service; time to answer; default
(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 delivery of a copy of the summons and 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, by delivery of a copy of the summons and
complaint in accordance with an applicable international convention on service of judicial
documents; or
(3) if service cannot be made under paragraphs (1) or (2), by sending a copy of the
summons and complaint and a notice of suit, together with a translation of each 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 head of the ministry of
foreign affairs of the foreign state concerned, or
(4) if service cannot be made within 30 days under paragraph (3), by sending two copies
of the summons and complaint and a notice of suit, together with a translation of each
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 in Washington, District of Columbia, to the attention of the Director of Special
Consular Services -- and the Secretary shall transmit one copy of the papers through
diplomatic channels to the foreign state and shall send to the clerk of the court a
certified copy of the diplomatic note indicating when the papers were transmitted.
As used in this subsection, a "notice of suit" shall mean a notice addressed
to a foreign state and in a form prescribed by the Secretary of State by regulation.
(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 delivery of a copy of the summons and complaint in accordance with any special
arrangement for service between the plaintiff and the agency or instrumentality; or
(2) if no special arrangement exists, by delivery of a copy of the summons and
complaint either to an officer, a managing or general agent, or to any other agent
authorized by appointment or by law to receive service of process in the United States; or
in accordance with an applicable international convention on service of judicial
documents; or
(3) if service cannot be made under paragraphs (1) or (2), and if reasonably calculated
to give actual notice, by delivery of a copy of the summons and complaint, together with a
translation of each into the official language of the foreign state --
(A) as directed by an authority of the foreign state or political subdivision in
response to a letter rogatory or request or
(B) by any form of mail requiring a signed receipt, to be addressed and dispatched 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.
(c) Service shall be deemed to have been made --
(1) in the case of service under subsection (a)(4), as of the date of transmittal
indicated in the certified copy of the diplomatic note; and
(2) in any other case under this section, as of the date of receipt indicated in the
certification, signed and returned postal receipt, or other proof of service applicable to
the method of service employed.
(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 instrumentality of a foreign state
shall serve an answer or other responsive pleading to the complaint within sixty days
after service has been made under this section.
(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 in this section.
§ 1609. Immunity from attachment and execution of property of a foreign state
Subject to existing international agreements to which the United States is a party at
the time of enactment of this Act the property in the United States of a foreign state
shall be immune from attachment arrest and execution except as provided in sections 1610
and 1611 of this chapter.
§ 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 --
(A) which is acquired by succession or gift, or
(B) which is immovable and situated in the I United States: Provided, That 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, or
(6) the judgment is based on an order confirming an arbitral award rendered against the
foreign state, provided that attachment in aid of execution, or execution, would not be
inconsistent with any provision in the arbitral agreement, or
(7) the judgment relates to a claim for which the foreign state is not immune under
section 1605(a)(7), regardless of whether the property is or was involved with the act
upon which the claim is based.
(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
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 section 1605(a) (2), (3), (5), or (7) or 1605(b) of this chapter,
regardless of whether the property is or was involved in the act 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 judgment 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 commercial 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 --
(1) the foreign state has explicitly waived its immunity
from attachment prior to judgment, notwithstanding any withdrawal of the waiver the
foreign state may purport to effect except in accordance with the terms of the waiver, and
(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.
(e) The vessels of a foreign state shall not be immune from arrest in rem,
interlocutory sale, and execution in actions brought to foreclose a preferred mortgage as
provided in section 1605(d).
(f)
(1)
(A) Notwithstanding any other provision of law, including but not limited to section
208(f) of the Foreign Missions Act (22 U.S.C. 4308(f)), and except as provided in
subparagraph (B), any property with respect to which financial transactions are prohibited
or regulated pursuant to section 5(b) of the Trading with the Enemy Act (50 U.S.C, App.
5(b)), section 620(a) of the Foreign Assistance Act of 1961 (22 U.S.C. § 2370(a)),
sections 202 and 203 of the International Emergency Economic Powers Act (50 U.S.C.
1701-1702), or any other proclamation, order, regulation, or license issued pursuant
thereto, shall be subject to execution or attachment in aid of execution of any judgment
relating to a claim for which a foreign state (including any agency or instrumentality or
such state) claiming such property is not immune under section 1605(a)(7).
(B) Subparagraph (A) shall not apply if, at the time the property is expropriated or
seized by the foreign state, the property has been held in title by a natural person or,
if held in trust, has been held for the benefit of a natural person or persons.
(2)
(A) At the request of any party in whose favor a judgment has been issued with respect
to a claim for which the foreign state is not immune under section 1605(a)(7), the Secretary of the Treasury and the Secretary of State shall fully,
promply, and effectively assist any judgment creditor or any court that has issued any
such judgment in identifying, locating, and executing against the property of that foreign
state or any agency or instrumentality of such state.
(B) In providing such assistance, the Secretaries --
(i) may provide such information to the court under seal; and
(ii) shall provide the information in a manner sufficient to allow the court to direct
the United States Marshall's office to promptly and effectively execute against that
property.
§ 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
(2) the property is, or is intended to be, used in connection with a military activity
and
(A) is of a military character, or
(B) is under the control of a military authority or defense agency.
(c) Notwithstanding the provisions of section 1610 of this chapter, the property of a
foreign state shall be immune from attachment and from execution in an action brought
under section 302 of the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996 to
the extent that the property is a facility or installation used by an accredited
diplomatic mission for official purposes.
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