Exceptions to Sovereign Immunity
After nearly a decade of litigation, the United States Court of Appeals for District of Columbia explains in Wye Oak Technology, Inc. v. Republic of Iraq why its sister court in Richmond, Virginia, wrongly denied the defendant foreign state its immunity defense under the Foreign Sovereign Immunities Act in 28 USC 1602 et seq. That court had rejected the commercial activities exception which the DC Circuit analyzed in the context of a post-trial judgment.
The defendant state had defended itself in the trial before the United States District Court for the District of Columbia. The DC Circuit held that the participation in the trial did not cause the defendant state to lose any immunity claim by an implicit waiver. The Court disagrees with the sister court on the second clause of the commercial activities exception.
Examining the law of the case doctrine, it determines that it is not bound by the Fourth Circuit's assessment. In its opinion, it explores other exceptions to sovereign immunity and concludes that the third exception in 28 USC 1605(a)(2) may apply "if the action is 'based upon … an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States'". It returns that issue to the District Court for its evualation or development of its case record and a ruling. -- Clemens Kochinke, partner, Berliner Corcoran & Rowe LLP, Washington, DC.
Sat, / Embassy Law Link