16/3/10
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Professor Craig Charles Beles
Seattle, Washington, USA

1812 -  Absolute Theory of FSI – The Schooner Exchange
And U.S. State Department Role “Advisory” only
1945 -  Restrictive Theory of FSI  - Mexico v. Hoffman
State Department Role becomes Greater
1952 -  Tate Letter Changes State Dept’s Role to “Conclusive”
But Diplomatic Pressures & Lack of Fact-Finding was Problem
1976 -  Congress Enacts Foreign Sovereign Immunity Act.
Returns FSI Determinations to Courts.

Section 47 Exemption from the jurisdiction of Czechoslovak courts(1) Foreign States and persons who
under international treaties or other rules of international law or special Czechoslovak legal
regulations enjoy immunity in the Czechoslovak Socialist Republic shall not be subject to the
jurisdiction of Czechoslovak courts.(2) The provision of paragraph 1 shall also apply to the
delivery of documents, summoning of the aforesaid persons as witnesses, execution of decisions or
other procedural acts.(3) However, Czechoslovak courts shall have jurisdiction, if:(a) the object
of the proceedings is real property of the States and persons mentioned in paragraph 1, which is
located in the Czechoslovak Socialist Republic, or their rights relating to such real property
belonging to other persons, as well as rights arising from the lease of such real property, unless
the object of the proceedings is the payment of rent,(b) the object of the proceedings is an
inheritance in which the persons mentioned in paragraph 1 act outside their official duties,(c) the
object of the proceedings concerns the pursuance of a profession or commercial activity which the
persons mentioned in paragraph 1 carry out outside their official duties,(d) the foreign State or
the persons mentioned in paragraph 1 voluntarily submit to their jurisdiction.(4) Delivery in the
cases listed in paragraph 3 shall be done through the Ministry of Foreign Affairs. If delivery
cannot thus be realized, the court shall appoint a guardian for accepting documents or, if
necessary, for protecting the absentee's rights.    Act No. 97/1963 - 4  December  1963

1st Section:  Grants  Subject  Matter  &  Personal  Jurisdiction
2nd Section:  Gives  Cts  Sole  Power  re  Immunity  Decisions
3rd Section:  Defines  “Foreign  State”  &  “Commercial  Activity”
4th Section:  Rule  of  FSI  Subject  to  FSIA’s  Exceptions
5th Section:  Sets  Forth  Nine (9)  Exceptions  to  FSI

FOREIGN STATES - Entity That Has Defined Territory, Permanent Population, Under Control of Its Own
Government, Has Capacity to Engage in Formal Relations

POLITICAL SUBDIVISIONS - All Governmental Units Beneath the Central Government, e.g. Czech 13
Regions, Cities, States, Counties, etc.
AGENCIES & INSTRUMENTALITIES – 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 . . . nor created under the laws of
any third country

1.** CONSENT **
2.** COMMERCIAL  ACTIVITY **
3.EXPROPRIATION  OF  PROPERTY  IN  U.S.
4.INHERITANCE  OR  GIFT
5.INJURY  OCCURRING  IN  U.S.
6.ENFORCEMENT  OF  ARB.  AGREEMENT
7.SOME  ACTS  OF  TORTURE,  TERRORISM
8.MARITIME  LIENS
9.FORECLOSURE  OF  SHIP  MORTGAGE

DETERMINED BY “PURPOSE” OR “NATURE” OF ACTIVITY?
CONTRAST:
MOL, INC v. P.R. of BANGLADESH (9TH Cir  1984)
Export of Rhesus Monkeys
WITH
HONDURAS AIRCRAFT REGISTRY (US Corp) v. HONDURAS
(11th Cir. 1997)  Inspection & Registry of Aircraft

1.FOREIGN  GOVERNMENT  CARRIES  ON  COMMERCIAL  ACTIVITY IN  U.S.
Like  Continuous  and  Systematic
2.
2.COMMERCIAL  ACTIVITY  MOSTLY  TOOK  PLACE  OUTSIDE U.S.  INVOLVED  ACT  THAT  TOOK  PLACE  IN
U.S.
Similar  to  Minimum  Contacts
3.
3.COMMERCIAL  ACTIVITY  THAT  TOOK  PLACE  ENTIRELY OUTSIDE  U.S.  HAD  DIRECT  EFFECT  IN  U.S.
Broader  than  Minimum  Contacts  or  Target  Tests

COURTS  OF  ONE  COUNTRY  WILL  NOT  SIT  IN JUDGMENT  OF  THE  ACTS  OF  THE  GOVERNMENT  OF
ANOTHER  COUNTRY,  DONE  WITHIN  THE  OTHER’S OWN  TERRITORY.  Restatement of Foreign  Relations
§443
RATIONALE  FOR  DOCTRINE?
CHOICE  OF  LAW  and
SEPARATION  OF  POWERS

FSIA = RULE  OF  SUBJECT  MATTER  &  PERSONAL  JURISDICTION
ASD = CHOICE  OF  LAW  RULE
FSIA = CODIFIED  BY  LAW
ASD = FEDERAL  COMMON  LAW
FSIA = PRINCIPLE  OF  CUSTOMARY  INTERNATIONAL  LAW
ASD = NOT  RECOGNIZED  IN  MANY  COUNTRIES
FSIA = APPLIES  TO  GOVT’S,   SUBD’S,  AGENCIES,  INSTRUMENT’S.
CAN  BE  RAISED  BY  PLs  FOR  JURISD,  OR  Ds  FOR  DEFENSE
ASD = ALMOST  ALWAYS  RAISED  BY  Ds  WHO  ACT  IN GOVERNMENTAL/POLICY-MAKING  CAPACITY.

TYPE OF ACTS?  GOVERNMENTAL/POLICY,  NOT OPERATIONAL/MINISTERIAL
INDIVIDUAL PERSON?  UNDER  PROPER CIRCUMSTANCES,  CAN  CLAIM  ASD
LOCATION OF ACT?  ACT  MUST  TAKE  PLACE  WITHIN SOVEREIGN’S  TERRETORY
ONLY  APPLIES  IN  CASE  WHERE  COURT  MUST  RULE  ON VALIDITY  OF  FOREIGN  ACT  IN  ORDER  TO
DECIDE  CASE  Kirkpatrick v. Environ Tectonics (U.S. 1990)

1.TREATY EXCEPTION –
PARTIES  HAVE  CHOSEN  APPLICABLE  LAW
1.
2. BERSTEIN EXCEPTION –
STATE  DEPARTMENT  OPINION  CONTROLLING
1.
3. COMMERCIAL “EXCEPTION” –
DIVISION  AMONG  COURTS
1.
4. ARBITRATION EXCEPTION –
NOT  APPLICABLE  TO  ARBITRATION  AGREEMENTS
1.
5. 2ND HICKENLOOPER AMENDMENT –
EXPROPRIATION  IN  VIOLATION  OF  CIL