Suing a Foreign State: Immunity as the Default
A foreign government is immune from suit in United States courts unless a statutory exception applies. The statute is the sole route to jurisdiction, which makes the first question of every such case the same one: which exception is being invoked.
The rule in short
The Foreign Sovereign Immunities Act makes a foreign state immune from the jurisdiction of federal and state courts except as the statute itself provides, and it is the sole basis for obtaining jurisdiction over a foreign state. A foreign state includes its political subdivisions and its agencies and instrumentalities. Exceptions cover waiver, commercial activity, certain expropriations, property in the United States, some domestic torts, and arbitration.
A claim against a foreign government begins from the opposite presumption to an ordinary case. The court is assumed to have no power to hear it. The Foreign Sovereign Immunities Act supplies both the presumption and the ways out of it, and the Supreme Court has held that it is the sole basis for obtaining jurisdiction over a foreign state in a United States court.
Immunity as the starting point
Section 1604 states the rule: subject to existing international agreements, a foreign state is immune from the jurisdiction of the courts of the United States and of the states except as provided in the following sections. Immunity is jurisdictional, so it can be raised at any time and cannot be waived by inadvertence in the way an ordinary defense can.
The statute displaced an older practice in which the executive branch suggested immunity case by case. Section 1602 records the judgment that claims of foreign states to immunity should be decided by courts in conformity with the principles set out in the chapter. What remains of executive influence is persuasive rather than binding.
What counts as a foreign state
Section 1603 defines the term to include a political subdivision of a foreign state and an agency or instrumentality of it. An agency or instrumentality is a separate legal person that is an organ of the state or a political subdivision, or a majority of whose ownership interest is owned by the state or a subdivision, and that is neither a citizen of a state of the United States nor created under the law of a third country.
Direct ownership is required. A company owned by a state holding company, which is in turn owned by the state, generally falls outside the definition and is litigated as an ordinary foreign corporation under the analysis in personal jurisdiction over a foreign defendant. Instrumentalities are also presumed to have a juridical status separate from the state, which matters when a creditor tries to reach one entity's assets for another's debt.
The structure of the exceptions
Section 1605 contains the general exceptions. A foreign state is not immune where it has waived immunity, expressly or by implication. Where the action is based on commercial activity with the required connection to the United States. Where rights in property taken in violation of international law are in issue and the property has a defined commercial connection here. Where rights in property in the United States acquired by succession or gift, or rights in immovable property here, are in issue.
Two more complete the general list. A non-commercial tort exception covering personal injury, death or property damage occurring in the United States and caused by a tortious act of the state or its officials acting within the scope of employment, subject to carve-outs for discretionary functions and certain torts. And an arbitration exception covering agreements to arbitrate and awards made under them. Separate provisions address designated state sponsors of terrorism and certain acts of international terrorism.
A complaint that avoids mentioning the defendant's sovereign character does not change the analysis, because immunity attaches to the defendant rather than to the label on the claim. Nor does suing an official instead of the state where the relief sought would run against the state itself. Courts look at what the judgment would do. The productive approach is the opposite of avoidance: identify the exception at the outset and plead the facts that bring the case within it.
| Exception | Core requirement | Connection to the United States | Common obstacle |
|---|---|---|---|
| Waiver | Express or implied surrender of immunity | None required | Implied waiver is read narrowly |
| Commercial activity | The action is based on commercial activity | One of three statutory links | Establishing a direct effect here |
| Expropriation | Property taken in violation of international law | Property or its proceeds present, or owned by an instrumentality doing business here | Takings from a state's own nationals |
| Non-commercial tort | Injury or damage caused by a tortious act | The act and the injury occur here | The discretionary function carve-out |
| Arbitration | An agreement to arbitrate or an award under one | A treaty or a defined connection | Identifying the governing treaty |
Who proves what
Courts apply a shifting framework. The defendant makes a prima facie showing that it is a foreign state within the definition. The plaintiff then bears a burden of production to show that an exception applies. If the plaintiff meets it, the ultimate burden of persuasion rests on the foreign state to establish that the exception does not.
Because the question is jurisdictional, a court may look outside the pleadings and resolve factual disputes, often after limited jurisdictional discovery. That discovery is narrower than ordinary discovery and is confined to the facts bearing on the exception, which is why the pleaded theory of jurisdiction determines how much a plaintiff will be permitted to investigate.
Procedure, and the separate question of execution
Section 1330 gives district courts original jurisdiction over non-jury civil actions against a foreign state as to claims for which it is not entitled to immunity, and provides that personal jurisdiction exists where that subject matter jurisdiction is present and service has been made under section 1608. There is no right to a jury, and a foreign state may remove any civil action from state court without regard to the citizenship of the parties. Service follows the mandatory sequence described in serving where the convention does not apply.
Winning is not collecting. Immunity from attachment and execution is governed by separate sections with their own narrow exceptions, and certain property, including central bank property held for its own account and property of a military character, remains immune even where a judgment stands. The collection tools available for ordinary debtors, described in enforcing a judgment once it is recognized, are largely unavailable here. The exception that carries most commercial cases past the jurisdictional stage is examined in the commercial activity exception.
Points to carry away
- The statute is the only route to jurisdiction over a foreign state in a United States court.
- Immunity is the default, and every claim must be matched to a statutory exception.
- Agencies and instrumentalities are covered, but only where directly majority-owned.
- The defendant makes a prima facie showing, and the plaintiff then points to an exception.
- Actions against a foreign state are tried without a jury.
- Immunity from execution is decided separately from immunity from suit.
Questions readers ask
Is a state-owned company treated as the state itself?
Only where it meets the statutory definition of an agency or instrumentality: a separate legal person that is an organ of the foreign state or a political subdivision, or a majority of whose shares or other ownership interest is owned by the state or a subdivision, and which is neither a citizen of a state of the United States nor created under the law of a third country. The Supreme Court held in Dole Food that ownership must be direct, so a subsidiary held through an intermediate company is generally outside the definition.
Can a foreign state be sued in state court?
It can be named there, but the case rarely stays. The immunity provisions bind state courts as well as federal courts, and the statute permits a foreign state to remove any civil action to federal district court, without regard to the citizenship of the parties and regardless of whether other defendants join. Removal is available even where no federal claim is pleaded. Once removed, the action is tried without a jury, which is one of the practical reasons removal is almost always exercised.
Does a foreign official get the same immunity?
Not under this statute. The Supreme Court has held that the Act governs suits against states and their instrumentalities, not suits against individual foreign officials, whose immunity is governed by common law principles and, where applicable, by diplomatic and consular treaties. That distinction changes the analysis entirely: the statutory exceptions do not apply, the executive branch's views carry weight, and the availability of immunity may turn on whether the acts were official or personal.
Sources
- Cornell Legal Information Institute — 28 U.S.C. 1604, Immunity of a Foreign State From JurisdictionThe rule of immunity subject only to the exceptions the statute itself sets out.
- Cornell Legal Information Institute — 28 U.S.C. 1603, DefinitionsWhat counts as a foreign state, an agency or instrumentality, and commercial activity.
- Cornell Legal Information Institute — 28 U.S.C. 1605, General Exceptions to Jurisdictional ImmunityWaiver, commercial activity, expropriation, property, tort and arbitration exceptions.
- Cornell Legal Information Institute — 28 U.S.C. 1602, Findings and Declaration of PurposeCongress's statement that claims of immunity are to be decided by courts under this chapter.
- Cornell Legal Information Institute — 28 U.S.C. 1330, Actions Against Foreign StatesOriginal jurisdiction over non-jury actions and how personal jurisdiction is established.
- Cornell Legal Information Institute — 28 U.S.C. 1608, Service in Courts of the United StatesThe mandatory hierarchy of service methods for a state and for an instrumentality.
- Cornell Legal Information Institute — 28 U.S.C. 1610, Exceptions to the Immunity From Attachment or ExecutionThe separate and narrower rules governing seizure of a foreign state's property.
Liberty Law Library is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
More in Cross-Border Litigation
Forum Objections and Parallel Proceedings Abroad
Forum non conveniens permits a court with jurisdiction to dismiss where an adequate alternative forum exists and the balance of private and public interest factors strongly favors trial there. An alternative forum is adequate where the defendant is amenable to process and the remedy is not so unsatisfactory as to be no remedy at all. A foreign plaintiff's choice of forum receives less deference than a domestic plaintiff's.
The Commercial Activity Exception
A foreign state loses immunity where the action is based upon commercial activity carried on in the United States, upon an act performed here in connection with commercial activity elsewhere, or upon an act outside the United States in connection with commercial activity elsewhere that causes a direct effect here. Commercial character is determined by the nature of the conduct rather than its purpose, following the market-player test in Weltover.
Enforcing a Judgment Once It Is Recognized
A foreign money judgment that has been recognized is enforceable in the same manner as a judgment of a sister state. Execution follows the procedure of the state where the enforcing court sits, and the creditor must domesticate the judgment separately in each state where assets are located. Post-judgment discovery is broad and reaches third parties. Currency conversion and interest are governed by the forum's own rules rather than by the rendering court's.