Originally from Reflections on International Arbitration - Essays in Honour of Professor George Bermann

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Submitted in honor of Professor George A. Bermann, a professor who took this former student under his wing and gave him a passion for International Arbitration and Transnational Litigation in a way that only he could.  It has been an honor and a privilege to get to know this exceptional academic and person inside and outside of the classroom, over our many phone calls and collaboration on Twilight Issues.  To a giant in his field and a mentor: Thank you.

Sovereign immunity is a well-established principle in the American legal system.  Yet, United States (“U.S.”) law concerning this principle differs substantially from that of other countries.  In the U.S., the question of whether a sovereign state (or sovereign state instrumentality, herein used interchangeably unless otherwise indicated) is afforded sovereign immunity is governed by the Foreign Sovereign Immunities Act of 1976 (the “FSIA”).   In many non-U.S. jurisdictions, “sovereign immunity” is considered an affirmative defense to liability.  However, U.S. Federal common law and the FSIA establish sovereign immunity as an immunity from suit rather than immunity from liability.  As such, sovereign immunity in the U.S. is a jurisdictional defense rather than an affirmative defense.  Sovereign immunity, therefore, lies on the borderline between jurisdiction and immunity, a principal reason for the complexity of U.S. law in this area.

This paper seeks to delve into the complexities of the FSIA’s application to international commercial disputes involving foreign state actors.