Foreign Sovereign Immunities Act

DISCLAIMER:

The information relating to the legal requirements of specific foreign countries is provided for general information only and may not be totally accurate in a particular case. Questions involving interpretation of specific foreign laws should be addressed to foreign attorneys. This circular seeks only to provide information; it is not an opinion on any aspect of U.S., foreign, or international law. The U.S. Department of State does not intend by the contents of this circular to take a position on any aspect of any pending litigation.

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What is the role of the Department of State to assist in effecting service on a foreign government?

The Department of State, Overseas Citizens Services [formerly Special Consular Services], is responsible for providing service of process on foreign states under the Foreign Sovereign Immunities Act (FSIA) through diplomatic channels in accordance with 28 U.S.C 1608(a)(4) and implementing regulations, 22 C.F.R. 93. In addition, the Department provides assistance under Sec. 1608(b) of the Act by providing information about service pursuant to letters rogatory or applicable international conventions on service and transmitting letters rogatory through diplomatic channels. Facilitating service pursuant to the FSIA is the Department of State’s statutory obligation, and the Department has no discretion in complying with the Act, provided a complete and appropriately compiled request is received, absent a clear indication the hierarchical methods of service set forth in Sec. 1608 were not followed, and a diplomatic channel is available. See 28 U.S.C.1608(a)(4); H.R. Rep. No. 94-1487, 94th Cong., 2d Sess. (1976) reprinted in 1976 U.S. Code Cong. & Ad. News 6623; 22 C.F.R. Part 93.

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What is the Foreign Sovereign Immunities Act?

The Foreign Sovereign Immunities Act of 1976, Pub. L. 94-583, 90 Stat. 2891, 28 U.S.C. Sec. 1330, 1332(a), 1391(f) and 1602-1611 [hereinafter the FSIA], limits the role of the Executive branch in civil suits against foreign States, including their agencies and instrumentalities. The FSIA establishes a default rule that foreign states are immune from the jurisdiction of U.S. courts unless the action falls within one of the specific exceptions set out in the statute. 28 U.S.C. §§ 1604-1607. The FSIA Act prescribes the means of service for suits against a foreign state, political subdivision agency or instrumentality in Section 1608. The FSIA provides that personal jurisdiction will exist in cases brought against foreign states only if an exception to immunity in Section 1605 applies and service has been made under Section 1608. See 28 U.S.C. § 1330(b). Under the FSIA, decisions on state immunity are the purview of the Judicial branch.

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What is the restrictive theory of sovereign immunity?

The immunity of a state from the jurisdiction of the courts of another state is an undisputed principle of customary international law. Until the twentieth century, sovereign immunity from the jurisdiction of foreign courts was characterized by an “absolute” approach. However, as governments increasingly engaged in state-trading and various commercial activities, it was urged that the immunity of states engaged in such activities was not required by international law, and that it was undesirable: Immunity deprived private parties that dealt with a state of their judicial remedies, and gave states an unfair advantage in competition with private commercial enterprise. The "restrictive" theory of immunity spread rapidly after the Second World War. The United States expressly articulated the restrictive theory in the 1952 “Tate Letter”, and the theory was codified by statute in 1976 (the FSIA).

Under the restrictive theory of sovereign immunity, a state is immune from the jurisdiction of the courts of another state, except with respect to claims arising out of activities of the kind that may be carried on by private persons. Under the restrictive theory, a state is immune from any exercise of judicial jurisdiction by another state in respect of claims arising out of governmental activities (acta jure imperii); it is not immune from the exercise of such jurisdiction in respect of claims arising out of activities of a kind carried on by private persons (acta jure gestionis).

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What are the general exceptions to the jurisdictional immunity of a foreign state?

Under the FSIA, a State is presumed to be entitled to sovereign immunity, unless an enumerated exception applies. Contemporary international law recognizes exceptions beyond the realm of "commercial activity," as reflected in the FSIA. Specifically, 28 U.S.C. 1605 provides that a foreign state shall not be immune from the jurisdiction of courts of the United States or of the states in any case in which:

1605(a) (1) - explicit or implicit waiver of immunity by the foreign state;

1605(a)(2) - commercial activity carried on in the United States or an act performed in the United States in connection with a commercial activity elsewhere, or an act in connection with a commercial activity of a foreign state elsewhere that causes a direct effect in the United States;

1605(a)(3) - property taken in violation of international law is at issue;

1605(a)(4) - rights in property in the United States acquired by succession or gift or rights in immovable property situated in the United States are at issue;

1605(a)(5) - money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state;

1605(a)(6) - action brought to enforce an agreement made by the foreign state with or for the benefit of a private party to submit to arbitration;

1605(b) - 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.

1605(d) - any action brought to foreclose a preferred mortgage.

1605A - money damages are sought against a foreign state designated as a state sponsor of terrorism 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 for such an act, if such act or provision of material support or resources 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.

1605B - money damages are sought against a foreign state for physical injury to person or property or death occurring in the United States and caused by (1) an act of international terrorism in the United States and (2) a tortious act or acts of the foreign state, or of any official, employee, or agent of that foreign state while acting within the scope of his or her office, employment, or agency, regardless where the tortious act or acts of the foreign state occurred.

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What is the difference between a foreign state, political subdivision, agency or instrumentality?

Section 1330(a) of the FSIA gives federal district courts original jurisdiction in personam over foreign states, which are defined as including political subdivisions, agencies, and instrumentalities of foreign states. The FSIA provides distinct methods of service on a foreign state or political subdivision, 28 USC 1608(a), or service on an agency or instrumentality of a foreign state, 28 USC 1608(b). In order to serve the defendant, the claimant must determine into which category the defendant falls. Plaintiffs must ensure an entity is properly characterized otherwise they risk efforts to serve the defendant, including transmission through diplomatic channels, will be ineffective. A defendant objecting to service under 28 USC 1608(a) or 28 USC 1608(b) is advised to make its views known to the appropriate court; the Department of State is not a party to and cannot represent parties in such litigation.

The term "political subdivisions" has been applied to both components of the central governments (e.g., departments and ministries) and all governmental units beneath the central government, (e.g., local governments). Section 1603(b) defines an "agency or instrumentality" of a foreign state as an 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 the a state of the United States as defined in 28 28 U.S.C 1332(c) and (e). nor created under the laws of any third country. An instrumentality of a foreign state may include a corporation, association, or other juridical person a majority of whose shares or other ownership interests are owned by the state, even when organized for profit. The legislative history of the FSIA at 1976 U.S. Code Cong. & Ad. News 6614-6618, states in part: "[A]s a general matter, entities which meet the definition of an ''agency or instrumentality of a foreign state'' could assume a variety of forms, organizations, such as a shipping line or an airline, a steel company, a central bank, an export association, a governmental procurement agency or a department or ministry which acts and is suable in its own name. Id. at 6614. 

Please note that performance by the Department of State of its statutory functions under 28 USC 1608(a) and 28 USC 1608(b) should not be construed as an indication in any way of the United States’ position or views on the status or character of an entity, whether plaintiffs have properly complied with all statutory requirements of the FSIA, whether service was properly effected, or the merits of any claims or defenses. 

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Is there a hierarchical order in which service must be attempted on a foreign state under the Act?

The FSIA (28 U.S.C. Sec. 1608(a)(1)-(4) provides for service of process on foreign state defendants in a four-step, hierarchical manner: (i) pursuant to a special agreement between the plaintiff and the foreign state; (ii) as prescribed in an applicable international agreement; (iii) via mail from the court clerk to the head of the foreign state’s Ministry of Foreign Affairs; (iv) through diplomatic channels. The legislative history of and court cases concerning the FSIA are extensive. The FSIA clarifies the circumstances in which a foreign state will be immune from suit and embodies a federal long-arm statute pursuant to which in personam jurisdiction can be obtained over a foreign state, political subdivision, agency or instrumentality, provided that service of process is effected in compliance with its service provisions. Service must be performed in a hierarchical manner --- if service cannot be made in accordance with sec 1608(a)(1), then service is attempted pursuant to 1608(a)(2) and so forth until the various methods are exhausted.

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Are the methods described in section 1608(a) exclusive? Can't I just serve the foreign embassy or mission to the United Nations?

The FSIA governs service of process on a foreign state,-(including its political subdivisions and, agencies and instrumentalities). See Fed. Rule Civ. Proc. 4(j)(1) (“A foreign state or its political subdivision, agency, or instrumentality must be served in accordance with 28 U.S.C. § 1608”). Service by Plaintiffs on a foreign embassy in the United States or mission to the United Nations is not one of the methods of service provided in the FSIA.

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How much time does the foreign state have to reply once service has been effected?

28 U.S.C 1608(d) provides that a foreign state has 60 days from the date service is effected in which to file an answer or other responsive pleading. The 60 day response period must be included in both the summons and the notice of suit where required.

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Do I have to have documents translated?

Section 1608(a)(3) and (4) require translation of the summons, complaint and notice of suit. Section 1608(b)(3) requires translation of the summons and complaint (and letters rogatory where applicable). Section 1608(e) requires translation of the default judgment and the notice of default judgment.

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How do I effect service on a foreign state or political subdivision?

The FSIA provides the following hierarchical steps for effecting service:

  1. Service Pursuant to Special Arrangement, 28 U.S.C. 1608(a)(1), provides for service pursuant to special arrangement of the parties.
  2. Service Pursuant to Applicable International Convention, 28 U.S.C. 1608(a)(2), provides for service under applicable international treaty or convention. The United States is party to two multilateral treaties on service of process, the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters and the Inter-American Convention on Letters Rogatory and Additional Protocol.
  3. Service 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, 28 U.S.C. 1608(a)(3). Proviso: Formal Objection of Foreign State to Service by Mail Upon Accession to the Hague Service Convention If a foreign state which is a party to the Hague Service Convention formally objected to service by mail when it acceded to the Convention, service under Section 1608(a)(3) should not be attempted, and the plaintiff should proceed to service under Section 1608(a)(4), citing in the cover letter to the Department of State’s, Directorate of Overseas Citizens Services the foreign state's objection to service by mail as noted in its accession to the Hague Service Convention. To determine which foreign state has objected to service under Article 10(a) of the Hague Service Convention via postal channels, see the Hague Conference on Private International Law website.
  4. Service via Diplomatic Channels: 28 U.S.C. 1608(a)(4)provides for service of a summons, complaint, and notice of suit through diplomatic channels if service could not be made by mail in accordance with Section 1608(a)(3) within 30 days. The Department of State will not accept a request for service under Section 1608(a)(4) if the other methods for service in Section 1608(a) have not been exhausted, if the documents are incomplete, or if requisite translations are not provided. The summons, complaint, and notice of suit must be submitted to the U.S. Department of State, L/CA/POG/GC, SA-17, 10th Floor, Washington, DC 20522-1710 in duplicate. Requesting courts or plaintiff's counsel should establish in writing to the Department that service has been attempted pursuant to 1608(a)(1), (2) and (3). If service is attempted pursuant to Section 1608(a)(2), by applicable international convention, and service is denied by a foreign central authority for the convention, a copy of the denial should be furnished. As explained above, if service under Section 1608(a)(3) is inapplicable due to the foreign state’s formal objection upon accession to the Hague Service Convention, this fact should also be noted.
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What is a Notice of Suit?

28 U.S.C. 1608(a)(3) and 1608(a)(4) require preparation of a "notice of suit". 22 C.F.R. 93.2(e) provides a format for a notice of suit. There is no pre-printed form. 22 C.F.R. 93.2(e) annex provides that a copy of the FSIA must accompany the notice of suit.

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How should a request for service under Section 1608(a)(4) be transmitted to the State Department?

28 U.S.C. 1608(a)(4) and 22 C.F.R. 93.1 provide that the documents be sent to the Department of State by the clerk of court. In practice, some courts have local rules, which provide that such documents are transmitted directly by plaintiff’s counsel rather than by the clerk of court. The Department of State accepts requests under Section 1608(a)(4) received under cover of a letter from either the clerk of court or counsel for the plaintiffs.

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What is Proof of service via the diplomatic channel under Section 1608(a)(4)?

A certified copy of the diplomatic note transmitting the summons, complaint and notice of suit to the foreign state is forwarded by the Department of State to the clerk of the court where the action is pending as proof of service. A courtesy copy is generally provided to plaintiff's counsel.

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How do I effect service on a foreign state with which the United States does not have diplomatic relations?

In practice, where there are no diplomatic relations between the United States and the foreign state, service has been accomplished where a protecting power arrangement exists, unless the protecting power was restricted (e.g, to emergency consular protection services only). See 22 C.F.R. 93.1(3). Consult the Department of State, Office of the Assistant Legal Adviser for Consular Affairs (L/CA/POG/GC) for guidance in such cases.

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How do I effect service on an agency or instrumentality of a foreign state (28 U.S.C. 1608(b))?

28 U.S.C. Section 1608(b) governs service on an agency or instrumentality of a foreign State.

  1. 28 U.S.C. 1608(b)(1) provides for service by special arrangement between the plaintiff and the agency or instrumentality.
  2. 28 U.S.C. 1608(b)(2) offers three methods of service: by delivery of a copy of the summons and complaint either [1] "to an officer, a managing or general agent" or [2] "by delivery of a copy of the summons and complaint "to any other agent authorized by appointment or by law to receive service of process in the United States," or [3] "in accordance with an applicable international convention on service of judicial documents." There are two multilateral Conventions on service that the United States is a party to, The Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, and The Inter-American Convention on Letters Rogatory and Additional Protocol.
  3. 28 U.S.C. 1608(b)(3) provides three alternative methods of service: (A) pursuant to letters rogatory; See Preparation of Letters Rogatory. The letters rogatory and accompanying documents should be submitted in duplicate (that is, one original in English with seal of court and signature of the judge, English photocopy and two copies of the translation.) No notice of suit is required; (A) Requests should be transmitted to:U.S. Department of State L/CA/POG/GC, SA-17, 10th Floor Washington, D.C. 20522-1710 Attn: FSIA (B) by any form of mail requiring a signed receipt to be addressed to the agency or instrumentality to be served. If a foreign state which is a party to the Hague Service Convention formally objected to service by mail when it acceded to the Convention, service under Section 1608(b)(3)(B) should not be attempted; or (C) by order of the court in the United States consistent with the law of the place where service is to be made. Before service is attempted under Section 1608(b)(3)(C), the FSIA calls for the court to look to the laws of the foreign state regarding service of documents in order to ensure that its direction is consistent with the law of the place where service is to be made.
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How do I effect service of a default judgment or other documents?

Section 1608(e) provides that once a default judgment has been entered, a copy shall be sent to the foreign state according to the methods set forth in section (a) and (b) of the Act. A "Notice of Default Judgment" shall be prepared utilizing the format prescribed in the Annex to 22 C.F.R. 93.2. As a practical matter, if service has been attempted in accordance with the hierarchical methods set forth in Sections 1608(a)(1)-(3) in the initial phase of the action (i.e service of process) without success, necessitating service through diplomatic channels, under Section 1608(a)(4), when service of a default judgment on the foreign state becomes necessary, the Department of State will accept a request for service through diplomatic channels without plaintiffs repeating efforts at service under Section 1608(a)(1)-1608(a)(3).

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Can I serve other documents through diplomatic channels?

Requests for service through diplomatic channels of documents other than the summons, complaint and notice of suit or the default judgment, not expressly provided for in the FSIA, will be considered by the Department of State on a case-by-case basis.

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How many copies are required?

You need to send two sets of the documents. One will be served. The other will be returned with a copy of the proof of service. Documents include:

For service under Section 1608(a)(4):

  1. Set 1: a. Summons (bearing the seal of court date, and signature of judge or clerk) b. Complaint (English) c. Notice of Suit (English, see 22 C.F.R. 93), and d. Translations of all of the above
  2. Set 2: Photocopies of all of the above (Summons, Complaint, Notice of Suit, and translations of each.)

For service under Section 1608(b)(3)(A)

  1. Set 1:a. Letter Rogatory (bearing seal of court and signature of judge), (English). b. Summons (bearing seal of court and signature of clerk) (English) c. Complaint (English), and d. Translations of all of the above.
  2. Set 2: Photocopies of all of the above (Letter Rogatory, Summons, Complaint and translations of each)
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Are there any fees associated with a service requested under the Act?

Yes. For current fees see the current schedule of fees, 22 C.F.R. 22.1.

Last Updated: December 19, 2023