FSIA Retroactivity Subsequent to the Issuance of the Tate Letter: A Proposed Solution to the Confusion
FSIA Retroactivity
FSIA Retroactivity Subsequent to the Issuance of the Tate Letter: A Proposed Solution to the Confusion
Michael E. Jansen 0
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FSIA Retroactivity Subsequent to the
'Issuance of the Tate Letter: A Proposed
Solution to the Confusion
CONTENTS
I.* INTRODUCTION ...........................................
VI.
CONCLUSION .............................................
334
For centuries, nations granted full immunity from suit to foreign
sovereigns in all aspects of their relationships.1 Today, however, the
United States, like most nations, requires foreign sovereigns to account
for their commercial activities that occur in or affect the United States.2
Although the Foreign Sovereign Immunities Act of 1976 ("FSIA") 3
clearly incorporates this requirement, considerable confusion has ensued
regarding the statute's retroactive application. This Comment attempts
to clear this confusion and to provide a solution to the issue of FSIA
retroactivity.
The FSIA, which sought to clarify the instances in which foreign
states may be sued in U.S. courts,4 codified the restrictive theory of
sovereign immunity, which the executive branch had for
mally adopted in
1952
when it issued the Tate Letter.5 In the Tate Letter, the State
Department publicly took the position that henceforth it would recommend
to U.S. courts that as a matter of policy, a foreign state should be granted
immunity only for its sovereign or public acts, and not for its private
acts.6
Accordingly, the FSIA sets forth the general rule that "a foreign
state shall be immune from the jurisdiction of the courts of the United
States,"'7 and then lists several specific exceptions to the general rule.8
These exceptions encompass thejuregestionis (private acts) referred to in
the Tate Letter,9 and they now provide the sole basis for state and federal
court jurisdiction over suits against foreign states."°
Although this restrictive theory of sovereign immunity was adopted
in the Tate Letter, the theory as codified in the FSIA differs substantially
from prior practice both substantively and procedurally. 1' Thus, there
has been considerable debate concerning the retroactive effect of the
FSIA-that is, whether the statute applies to claims which arose before
the statute was enacted.
Three recently decided cases discuss the retroactive application of
the FSIA to pre-1952 claims-Carl Marks & Co. v. Union of Soviet
SocialistRepublics,'" Jackson v. People'sRepublic of China,'3 and Slade v.
UnitedStates ofMexico. 4 These cases have conclusively established that
the FSIA is not to be applied retroact
ively to pre-1952
events-i.e., to
claims arising prior to the issuance of the Tate Letter. 5 They do not
resolve the issue of retroactive application of the FSIA to post-1952
events, however, and this issue is currently engulfed in confusion. 6
This Comment attempts to resolve this confusion and propose a
solution to the retroactivity problem. Section II delineates the retroactivity
issue, while Section III discusses the history of sovereign immunity and
describes the FSIA in detail. Section IV outlines the sources of confusion
in the area of FSIA retroactivity and identifies four basic principles
which may be applied to circumvent the confusion. Finally, Section V
proposes a retroactivity solution arrived at through the application of
these principles.
10 Verlinden B.V. v. Central Bank of Negeria, 461 U.S. 480 (1983). See infra note 121 for a
more extensive list of citations.
11 See infra notes 128-131 and accompanying text.
12 665 F. Supp. 323 (S.D.N.Y. 1987), aff'd, 841 F.2d 26 (2d Cir.), cert.denied, - U.S. -, 108 S.
Ct. 2874 (1988).
13 596 F. Supp. 386, aff'd, 74 F.2d 1490 (11th Cir. 1986), cert. denied, 480 U.S. 917 (1987).
14 617 F. Supp. 351 (D.C.D.C. 1985), aff'd, 790 F.2d 163 (D.C. Cir. 1986), cert denied, 479 U.S.
1032, reh'g denied, 480 U.S. 912 (1987).
15 See infra notes 132-152 and accompanying text.
16 Upon initial observation, it appears that because the FSIA has now been in effect for more
than a decade, applicable statutes of limitations would moot the FSIA retroactivity issue. The
Jackson, Slade, and CarlMarks cases, however, are proof that claims upon such grounds as the
repudiation of international debt may remain viable forever because no statute of limitations bars claims
against international debt obligations. As one prominent author noted: "There is no statute of
limitations as to international claims," and "[g]overnments are presumed to be always ready to do
justice, and whether a claim be a day or a century old, so that it is well-founded, every (...truncated)