What is the Foreign Sovereign Immunities Act?

There are many situations in which US litigants may find themselves suing a foreign defendant who is neither a private individual nor an entity, but rather a sovereign nation.

Counsel may be tempted to serve the foreign state with process pursuant to the Hague Service Convention or whatever treaty may be applicable, if any.

But, when a foreign government is the defendant, the analysis is not so simple. In these cases, another piece of US legislation must be consulted to determine the correct method of service of process. This legislation is the Foreign Sovereign Immunities Act of 1976 (“FSIA”).

Scope of the Foreign Sovereign Immunities Act

The FSIA is a fairly complex collection of legislative provisions that addresses many aspects of how foreign state defendants should be viewed under US law. The FSIA establishes the exclusive methods for effecting service upon a foreign government (or its political subdivisions, agencies, or instrumentalities, which are specifically covered by the provisions and methods outlined at 28 U.S.C. § 1608(b)).

In addition to dictating how service of process must be effected upon foreign governmental defendants, the FSIA also contains provisions related to:

scales of justice statue
  • Jurisdictional grounds for suing foreign state defendants
  • Limitations as to whether a foreign governmental actor may be sued in US courts at all
  • Immunities available to foreign state defendants, and
  • Specific procedures for attachment of property for proceedings against a foreign government.

The Hierarchy

1) The first method that must be pursued, if applicable, is service through a special agreement between the plaintiff and the foreign state. An example of this type of agreement would be a contractual service provision between a US plaintiff and a foreign government. See 28 U.S.C. § 1608(a)(1).

2) If the first method of service is not available, the FSIA states that a US litigant must then pursue international service of process through an applicable international agreement.

This second method is aimed squarely at international service pursuant to the Hague Service Convention or the Inter-American Convention on Letters Rogatory and Additional Protocol. Please bear in mind, however, that many countries are not a signatory to any international treaty regulating service of process and special care should be taken to determine if service pursuant to this second step is appropriate.See 28 U.S.C. § 1608(a)(2).

3) If no international agreement or treaty exists between the foreign state and the US, the FSIA mandates that service must be effected via mail dispatched from the court clerk to the head of the foreign state’s ministry of foreign affairs or the agency tasked with receiving foreign process.

This method of service requires that the mailing include a summary notice of suit and that the documents must be translated into the official language of the foreign state.See 28 U.S.C. § 1608(a)(3).

4) If none of the first three methods of service are available or have failed, the FSIA requires service of process to be made upon the foreign state defendant through diplomatic channels. This method involves the US State Department and the foreign state’s own ministry or agency charged with accepting diplomatic communications from the US. See 28 U.S.C. § 1608(a)(4).

What Happens After Service is Effected?

Once service has been effected pursuant to any of the methods set forth in the FSIA, a foreign state defendant has 60 days from the date of service in which to file an answer or other responsive pleading. See 28 USC 1608(d).

US litigants should be aware that this 60-day response period must be included in both the summons and the notice of suit, when such notice is required.

Contact LLS

LLS has extensive experience effecting service of process upon foreign state defendants. We have successfully served pursuant to the FSIA all of the following nations: Greece, Germany, Brazil, Argentina, Namibia, China, Italy, Japan, Bulgaria, Honduras, Sweden, Canada, and even Cuba and Venezuela.

Litigants faced with having to perfect this type of service should take advantage of LLS’ expertise and give us a call for assistance: 800-755-5775.

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