January 01, 2017

Playing the Sovereign Card: Defending Foreign Sovereigns in U.S. Courts

An overview of the special rules that apply to foreign sovereigns during litigation.

Laura G. Fergusson and Charles F. B. McCaleer Jr.

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The Foreign Sovereign Immunities Act (FSIA) turns 40 this year, presenting a fitting occasion to take stock of the perks and pitfalls of representing a foreign state in U.S. courts. This article provides an overview of the special rules that apply to foreign sovereigns at each step of the litigation process—from service of complaint to enforcement of judgment—and also discusses the unique challenges of representing a foreign state client.

When defending a foreign state, the first question to ask is whether your client was properly served. The FSIA’s service provision, 28 U.S.C. § 1608, is the exclusive means for serving process on a foreign state, political subdivision, or state-owned instrumentality. See Fed. R. Civ. P. 4(j). Courts require strict adherence to the terms of section 1608, although they frequently will give plaintiffs another opportunity to effect service using the proper method. Actual notice is not sufficient.

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