Online Attorney

ce (Jan. 1, 1989), and to cease to have effect on date Agreement ceases to be in force, see section 501(a), (c) of Pub. L. 100-449, set out in a note under section 2112 of Title 19, Customs Duties. EFFECT OF TERMINATION OF NAFTA COUNTRY STATUS For provisions relating to effect of termination of NAFTA country status on sections 401 to 416 of Pub. L. 103-182, see section 3451 of Title 19, Customs Duties. -End- -CITE- 28 USC Sec. 1585 01/19/04 -EXPCITE- TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE PART IV - JURISDICTION AND VENUE CHAPTER 95 - COURT OF INTERNATIONAL TRADE -HEAD- Sec. 1585. Powers in law and equity -STATUTE- The Court of International Trade shall possess all the powers in law and equity of, or as conferred by statute upon, a district court of the United States. -SOURCE- (Added Pub. L. 96-417, title II, Sec. 201, Oct. 10, 1980, 94 Stat. 1730.) -End- -CITE- 28 USC CHAPTER 97 - JURISDICTIONAL IMMUNITIES OF FOREIGN STATES 01/19/04 -EXPCITE- TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE PART IV - JURISDICTION AND VENUE CHAPTER 97 - JURISDICTIONAL IMMUNITIES OF FOREIGN STATES -HEAD- CHAPTER 97 - JURISDICTIONAL IMMUNITIES OF FOREIGN STATES -MISC1- Sec. 1602. Findings and declaration of purpose. 1603. Definitions. 1604. Immunity of a foreign state from jurisdiction. 1605. General exceptions to the jurisdictional immunity of a foreign state. 1606. Extent of liability. 1607. Counterclaims. 1608. Service; time to answer default.(!1) 1609. Immunity from attachment and execution of property of a foreign state. 1610. Exceptions to the immunity from attachment or execution. 1611. Certain types of property immune from execution. -FOOTNOTE- (!1) So in original. Does not conform to section catchline. -End- -CITE- 28 USC Sec. 1602 01/19/04 -EXPCITE- TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE PART IV - JURISDICTION AND VENUE CHAPTER 97 - JURISDICTIONAL IMMUNITIES OF FOREIGN STATES -HEAD- Sec. 1602. Findings and declaration of purpose -STATUTE- The Congress finds that the determination by United States courts of the claims of foreign states to immunity from the jurisdiction of such courts would serve the interests of justice and would protect the rights of both foreign states and litigants in United States courts. Under international law, states are not immune from the jurisdiction of foreign courts insofar as their commercial activities are concerned, and their commercial property may be levied upon for the satisfaction of judgments rendered against them in connection with their commercial activities. Claims of foreign states to immunity should henceforth be decided by courts of the United States and of the States in conformity with the principles set forth in this chapter. -SOURCE- (Added Pub. L. 94-583, Sec. 4(a), Oct. 21, 1976, 90 Stat. 2892.) -MISC1- EFFECTIVE DATE Section 8 of Pub. L. 94-583 provided that: "This Act [enacting this chapter and section 1330 of this title, amending sections 1332, 1391, and 1441 of this title, and enacting provisions set out as notes under this section and section 1 of this title] shall take effect ninety days after the date of its enactment [Oct. 21, 1976]." SHORT TITLE For short title of Pub. L. 94-583 as the "Foreign Sovereign Immunities Act of 1976", see section 1 of Pub. L. 94-583, set out as a Short Title of 1976 Amendments note under section 1 of this title. SEPARABILITY Section 7 of Pub. L. 94-583 provided that: "If any provision of this Act [enacting this chapter and section 1330 of this title, amending sections 1332, 1391, and 1441 of this title, and enacting provisions set out as notes under this section and section 1 of this title] or the application thereof to any foreign state is held invalid, the invalidity does not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable." -End- -CITE- 28 USC Sec. 1603 01/19/04 -EXPCITE- TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE PART IV - JURISDICTION AND VENUE CHAPTER 97 - JURISDICTIONAL IMMUNITIES OF FOREIGN STATES -HEAD- Sec. 1603. Definitions -STATUTE- For purposes of this chapter - (a) A "foreign state", except as used in section 1608 of this title, includes a political subdivision of a foreign state or an agency or instrumentality of a foreign state as defined in subsection (b). (b) An "agency or instrumentality of a foreign state" means any 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 a State of the United States as defined in section 1332 (c) and (d) of this title, nor created under the laws of any third country. (c) The "United States" includes all territory and waters, continental or insular, subject to the jurisdiction of the United States. (d) A "commercial activity" means either a regular course of commercial conduct or a particular commercial transaction or act. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose. (e) A "commercial activity carried on in the United States by a foreign state" means commercial activity carried on by such state and having substantial contact with the United States. -SOURCE- (Added Pub. L. 94-583, Sec. 4(a), Oct. 21, 1976, 90 Stat. 2892.) -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 1330, 1332, 1369, 1391, 1441, 1610 of this title; title 12 section 635; title 15 section 15; title 22 sections 2295b, 6003, 6023. -End- -CITE- 28 USC Sec. 1604 01/19/04 -EXPCITE- TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE PART IV - JURISDICTION AND VENUE CHAPTER 97 - JURISDICTIONAL IMMUNITIES OF FOREIGN STATES -HEAD- Sec. 1604. Immunity of a foreign state from jurisdiction -STATUTE- Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter. -SOURCE- (Added Pub. L. 94-583, Sec. 4(a), Oct. 21, 1976, 90 Stat. 2892.) -REFTEXT- REFERENCES IN TEXT The time of enactment of this Act, referred to in text, probably means the time of enactment of Pub. L. 94-583, which was approved Oct. 21, 1976. -SECREF- SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 1605 of this title. -End- -CITE- 28 USC Sec. 1605 01/19/04 -EXPCITE- TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE PART IV - JURISDICTION AND VENUE CHAPTER 97 - JURISDICTIONAL IMMUNITIES OF FOREIGN STATES -HEAD- Sec. 1605. General exceptions to the jurisdictional immunity of a foreign state -STATUTE- (a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case - (1) in which the foreign state has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of the waiver which the foreign state may purport to effect except in accordance with the terms of the waiver; (2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or 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; (3) in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state; or that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States; (4) in which rights in property in the United States acquired by succession or gift or rights in immovable property situated in the United States are in issue; (5) not otherwise encompassed in paragraph (2) above, in which 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 or of any official or employee of that foreign state while acting within the scope of his office or employment; except this paragraph shall not apply to - (A) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused, or (B) any claim arising out of malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights; (6) in which the action is brought, either to enforce an agreement made by the foreign state with or for the benefit of a private party to submit to arbitration all or any differences which have arisen or which may arise between the parties with respect to a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration under the laws of the United States, or to confirm an award made pursuant to such an agreement to arbitrate, if (A) the arbitration takes place or is intended to take place in the United States, (B) the agreement or award is or may be governed by a treaty or other international agreement in force for the United States calling for the recognition and enforcement of arbitral awards, (C) the underlying claim, save for the agreement to arbitrate, could have been brought in a United States court under this section or section 1607, or (D) paragraph (1) of this subsection is otherwise applicable; or (7) not otherwise covered by paragraph (2), in which money damages are sought against a foreign state 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 (as defined in section 2339A of title 18) for such an act if such act or provision of material support 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, except that the court shall decline to hear a claim under this paragraph - (A) if the foreign state was not designated as a state sponsor of terrorism under section 6(j) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)) or section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371) at the time the act occurred, unless later so designated as a result of such act or the act is related to Case Number 1:00CV03110(EGS) in the United States District Court for the District of Columbia; and (B) even if the foreign state is or was so designated, if - (i) the act occurred in the foreign state against which the claim has been brought and the claimant has not afforded the foreign state a reasonable opportunity to arbitrate the claim in accordance with accepted international rules of arbitration; or (ii) neither the claimant nor the victim was a national of the United States (as that term is defined in section 101(a)(22) of the Immigration and Nationality Act) when the act upon which the claim is based occurred. (b) A foreign state shall not be immune from the jurisdiction of the courts of the United States in any case in which 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: Provided, That - (1) notice of the suit is given by delivery of a copy of the summons and of the complaint to the person, or his agent, having possession of the vessel or cargo against which the maritime lien is asserted; and if the vessel or cargo is arrested pursuant to process obtained on behalf of the party bringing the suit, the service of process of arrest shall be deemed to constitute valid delivery of such notice, but the party bringing the suit shall be liable for any damages sustained by the foreign state as a result of the arrest if the party bringing the suit had actual or constructive knowledge that the vessel or cargo of a foreign state was involved; and (2) notice to the foreign state of the commencement of suit as provided in section 1608 of this title is initiated within ten days either of the delivery of notice as provided in paragraph (1) of this subsection or, in the case of a party who was unaware that the vessel or cargo of a foreign state was involved, of the date such party determined the existence of the foreign state's interest. (c) Whenever notice is delivered under subsection (b)(1), the suit to enforce a maritime lien shall thereafter proceed and shall be heard and determined according to the principles of law and rules of practice of suits in rem whenever it appears that, had the vessel been privately owned and possessed, a suit in rem might have been maintained. A decree against the foreign state may include costs of the suit and, if the decree is for a money judgment, interest as ordered by the court, except that the court may not award judgment against the foreign state in an amount greater than the value of the vessel or cargo upon which the maritime lien arose. Such value shall be determined as of the time notice is served under subsection (b)(1). Decrees shall be subject to appeal and revision as provided in other cases of admiralty and maritime jurisdiction. Nothing shall preclude the plaintiff in any proper case from seeking relief in personam in the same action brought to enforce a maritime lien as provided in this section. (d) A foreign state shall not be immune from the jurisdiction of the courts of the United States in any action brought to foreclose a preferred mortgage, as defined in the Ship Mortgage Act, 1920 (46 U.S.C. 911 and following). Such action shall be brought, heard, and determined in accordance with the provisions of that Act and in accordance with the principles of law and rules of practice of suits in rem, whenever it appears that had the vessel been privately owned and possessed a suit in rem might have been maintained. (e) For purposes of paragraph (7) of subsection (a) - (1) the terms "torture" and "extrajudicial killing" have the meaning given those terms in section 3 of the Torture Victim Protection Act of 1991; (2) the term "hostage taking" has the meaning given that term in Article 1 of the International Convention Against the Taking of Hostages; and (3) the term "aircraft sabotage" has the meaning given that term in Article 1 of the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation. (f) No action shall be maintained under subsection (a)(7) unless the action is commenced not later than 10 years after the date on which the cause of action arose. All principles of equitable tolling, including the period during which the foreign state was immune from suit, shall apply in calculating this limitation period. (g) Limitation on Discovery. - (1) In general. - (A) Subject to paragraph (2), if an action is filed that would otherwise be barred by section 1604, but for subsection (a)(7), the court, upon request of the Attorney General, shall stay any request, demand, or order for discovery on the United States that the Attorney General certifies would significantly interfere with a criminal investigation or prosecution, or a national security operation, related to the incident that gave rise to the cause of action, until such time as the Attorney General advises the court that such request, demand, or order will no longer so interfere. (B) A stay under this paragraph shall be in effect during the 12-month period beginning on the date on which the court issues the order to stay discovery. The court shall renew the order to stay discovery for additional 12-month periods upon motion by the United States if the Attorney General certifies that discovery would significantly interfere with a criminal investigation or prosecution, or a national security operation, related to the incident that gave rise to the cause of action. (2) Sunset. - (A) Subject to subparagraph (B), no stay shall be granted or continued in effect under paragraph (1) after the date that is 10 years after the date on which the incident that gave rise to the cause of action occurred. (B) After the period referred to in subparagraph (A), the court, upon request of the Attorney General, may stay any request, demand, or order for discovery on the United States that the court finds a substantial likelihood would - (i) create a serious threat of death or serious bodily injury to any person; (ii) adversely affect the ability of the United States to work in cooperation with foreign and international law enforcement agencies in investigating violations of United States law; or (iii) obstruct the criminal case related to the incident that gave rise to the cause of action or undermine the potential for a conviction in such case. (3) Evaluation of evidence. - The court's evaluation of any request for a stay under this subsection filed by the Attorney General shall be conducted ex parte and in camera. (4) Bar on motions to dismiss. - A stay of discovery under this subsection shall constitute a bar to the granting of a motion to dismiss under rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure. (5) Construction. - Nothing in this subsection shall prevent the United States from seeking protective orders or asserting privileges ordinarily available to the United States. -SOURCE- (Added Pub. L. 94-583, Sec. 4(a), Oct. 21, 1976, 90 Stat. 2892; amended Pub. L. 100-640, Sec. 1, Nov. 9, 1988, 102 Stat. 3333; Pub. L. 100-669, Sec. 2, Nov. 16, 1988, 102 Stat. 3969; Pub. L. 101-650, title III, Sec. 325(b)(8), Dec. 1, 1990, 104 Stat. 5121; Pub. L. 104-132, title II, Sec. 221(a), Apr. 24, 1996, 110 Stat. 1241; Pub. L. 105-11, Apr. 25, 1997, 111 Stat. 22; Pub. L. 107-77, title VI, Sec. 626(c), Nov. 28, 2001, 115 Stat. 803; Pub. L. 107-117, div. B, Sec. 208, Jan. 10, 2002, 115 Stat. 2299.) -REFTEXT- REFERENCES IN TEXT Section 101(a)(22) of the Immigration and Nationality Act, referred to in subsec. (a)(7)(B)(ii), is classified to section 1101(a)(22) of Title 8, Aliens and Nationality. The Ship Mortgage Act, 1920, referred to in subsec. (d), is section 30 of act June 5, 1920, ch. 250, 41 Stat. 1000, as amended, which was classified generally to chapter 25 (Sec. 911 et seq.) of former Title 46, Shipping, and was repealed by Pub. L. 100-710, title I, Sec. 106(b)(2), Nov. 23, 1988, 102 Stat. 4752, and reenacted by section 102(c) thereof as chapters 301 and 313 of Title 46, Shipping. Section 3 of the Torture Victim Protection Act of 1991, referred to in subsec. (e)(1), is section 3 of Pub. L. 102-256, Mar. 12, 1992, 106 Stat. 73, which is set out in a note under section 1350 of this title. Rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure, referred to in subsec. (g)(4), are set out in the Appendix to this title. -MISC1- AMENDMENTS 2002 - Subsec. (a)(7)(A). Pub. L. 107-117 amended Pub. L. 107-77. See 2001 Amendment note below. 2001 - Subsec. (a)(7)(A). Pub. L. 107-77, as amended by Pub. L. 107-117, inserted before semicolon "or the act is related to Case Number 1:00CV03110(EGS) in the United States District Court for the District of Columbia". 1997 - Subsec. (a)(7)(B)(ii). Pub. L. 105-11 substituted "neither the claimant nor the victim was" for "the claimant or victim was not". 1996 - Subsec. (a)(7). Pub. L. 104-132, Sec. 221(a)(1), added par. (7). Subsecs. (e) to (g). Pub. L. 104-132, Sec. 221(a)(2), added subsecs. (e) to (g). 1990 - Subsec. (a)(6). Pub. L. 101-650 substituted "state" for "State" after "foreign". 1988 - Subsec. (a)(6). Pub. L. 100-669 added par. (6). Subsec. (b). Pub. L. 100-702, Sec. 1(3), struck out at end "Whenever notice is delivered under subsection (b)(1) of this section, the maritime lien shall thereafter be deemed to be an in personam claim against the foreign state which at that time owns the vessel or cargo involved: Provided, That a court may not award judgment against the foreign state in an amount greater than the value of the vessel or cargo upon which the maritime lien arose, such value to be determined as of the time notice is served under subsection (b)(1) of this section." Subsec. (b)(1). Pub. L. 100-640, Sec. 1(1), substituted "and if the vessel or cargo is arrested pursuant to process obtained on behalf of the party bringing the suit, the service of process of arrest shall be deemed to constitute valid delivery of such notice, but the party bringing the suit shall be liable for any damages sustained by the foreign state as a result of the arrest if the party bringing the suit had actual or constructive knowledge that the vessel or cargo of a foreign state was involved" for "but such notice shall not be deemed to have been delivered, nor may it thereafter be delivered, if the vessel or cargo is arrested pursuant to process obtained on behalf of the party bringing the suit - unless the party was unaware that the vessel or cargo of a foreign state was involved, in which event the service of process of arrest shall be deemed to constitute valid delivery of such notice". Subsec. (b)(2). Pub. L. 100-640, Sec. 1(2), substituted "paragraph (1) of this subsection" for "subsection (b)(1) of this section". Subsecs. (c), (d). Pub. L. 100-702, Sec. 1(3), added subsecs. (c) and (d). EFFECTIVE DATE OF 1997 AMENDMENT Pub. L. 105-11 provided that the amendment made by that Act was effective with respect to any cause of action arising before, on, or after Apr. 25, 1997. EFFECTIVE DATE OF 1996 AMENDMENT Section 221(c) of title II of Pub. L. 104-132 provided that: "The amendments made by this subtitle [subtitle B (Sec. 221) of title II of Pub. L. 104-132, amending this section and section 1610 of this title] shall apply to any cause of action arising before, on, or after the date of the enactment of this Act [Apr. 24, 1996]." EFFECTIVE DATE OF 1988 AMENDMENT Section 3 of Pub. L. 100-640 provide

Online Attorney