A Policy Analysis of the American Law of Foreign State Immunity

Fordham Law Review, Dec 1981

By Thomas H. Hill, Published on 01/01/81

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A Policy Analysis of the American Law of Foreign State Immunity

A Polic y Analysis of the American Law of Foreign State Immunity as H. Hill 0 1 0 Thi s Article is brought to you for free and open access by FLASH: The F ordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The F ordham Law Archive of Scholarship and History. For more information , please contact 1 Thom as H. Hill, A Policy Analysis of the American Law of Foreign State Immunity , 50 Fordham L. Rev. 155 (1981). Available at: - Article 1 Thom A Policy Analysis of the American Law of Foreign State Immunity THOMAS H. HILL* TABLE OF CONTENTS C . Jurisdiction.................................. 1. The Statutory Scheme ...................... 2. The Shift to Personal Jurisdiction ............ 3. Subject Matter Jurisdiction .................. a. Structuralfeatures ...................... b. The elimination of in rem and quasi in rem actions .......................... 4. Personal Jurisdiction a. Jurisdictionalcontacts ................... T he Foreign Sovereign Immunities Act of 19761 (the Act or the FSIA) extends immunity from legal action to foreign states and their agencies and instrumentalities, subject to various exceptions and qualifications. In addition, the Act establishes a comprehensive jurisdictional scheme for actions involving foreign states.2 These provisions effect substantial changes from prior law, which was outdated, uncertain and heavily influenced by foreign policy considerations of the executive branch of government. 3 Legislators 1. Foreign Sovereign Immunities Act of 1976, Pub. L. No. 94-583, 90 Stat. 2891 (codified in scattered sections of 28 U.S.C.). 2. 28 U.S.C. §§ 1330, 1604-1607 (1976). For a brief analysis of the Act's operation as a long-arm statute, see East Europe Domestic Int'l Sales Corp. v. Terra, 467 F. Supp. 383 (S.D.N.Y.), aff'd, 610 F.2d 806 (2d Cir. 1979); see H.R. Rep. No. 1487, 94th Cong., 2d Sess. 12-14, 16-22, reprintedin 1976 U.S. Code Cong. & Ad. News 6604, 6611-13, 6614-21 [hereinafter cited as House Report]. Great Britain enacted a very similar law in 1978. The State Immunity Act, 1978, ch.33. 3. See T. Giuttari, The American Law of Sovereign Immunity (1970); S. Sucharitkul, State Immunities and Trading Activities in International Law (1959); Garcia-Mora, The Doctrine of Sovereign Immunity of ForeignStates and Its Recent Modifications, 42 Va. L. Rev. 335 (1956); Goodman, Immunity of Foreign Sovereigns: A Political or Legal Question-Victory Transport Revisited, 38 Brooklyn L, Rev. 885 (1972); Lauterpacht, The Problem of JurisdictionalImmunities of Foreign States, 28 Brit. Y.B. Int'l L. 220 (1951); Lowenfeld, Litigatinga Sovereign Immunity Claim-The Haiti Case, 49 N.Y.U. L. Rev. 377 (1974) [hereinafter cited as Lowenfeld I]; Lowenfeld, ClaimsAgainst ForeignStates-A ProposalForReform of United States Law, 44 N.Y.U. L. Rev. 901 (1969) [hereinafter cited as Lowenfeld II]; Pugh & McLaughlin, JurisdictionalImmunities of Foreign States, 41 N.Y.U. L. Rev. 25 (1966); Timberg, Sovereign Immunity, State Trading, Soialism and Sell-Deception, 56 Nw. U. L. Rev. 109 (1961) [hereinafter cited as Timberg I]; Note, The Foreign Sovereign Immunities Act of 1976: Giving the Plaintiff His Day in Court, 46 Fordham L. Rev. 543 (1977) [hereinafter cited as Day in Court]; Note, The Jurisdcand jurists have high hopes that the FSIA will be successful in curing the many problems that previously attended litigation against foreign states in United States courts. 4 A substantial number of cases have now been decided under the Act, and the time has come to undertake an initial assessment of its success in addressing the problems that existed in the prior law of sovereign immunity. This Article focuses on the policies underlying various aspects of the law of sovereign immunity and explores its conceptual structure. Part I briefly explains the roots of sovereign immunity and traces its evolution to the present day. This will provide a mode of analysis for the modem law of sovereign immunity. Part II describes and analyzes the most troubling problems that existed in the rules of immunity in 1976, when the FSIA was enacted. Part III evaluates the Act's proffered solutions to the problems described in Part II. The evaluation discusses whether those problems have been solved by the statute and suggests tentative remedies in those areas where difficulties remain. tional Immunity of ForeignSovereigns, 63 Yale L.J. 1148 (1954) [hereinafter cited as JurisdictionalImmunity]; J. Sweeney, The International Law of Sovereign Immunity (October 1963) (Policy Research Study, Bureau of Intelligence & Research, U.S. Dep't of State); see also Restatement (Second) of Foreign Relations Law of the United States §§ 65-72 (1965). 4. See Atkeson, Perkins & Wyatt, H.R. 11315-The Revised State-Justice Bill on Foreign Sovereign Immunity: Time for Action, 70 Am. J. Int'l L. 298 (1976); Carl, Suing Foreign Governments in American Courts: The United States Foreign Sovereign Immunities Act in Practice, 33 Sw. L.J. 1009 (1979); Delaume, Public Debt and Sovereign Immunity: The ForeignSovereign Immunities Act of 1976, 71 Am. J. Int'l L. 399 (1977); Kahale & Vega, Immunity and Jurisdiction:Toward a Uniform Body of Law in Actions Against ForeignStates, 18 Colum. J. Transnat'l L. 211 (1979); Sklaver, Sovereign Immunity in the United States: An Analysis of S. 566, 8 Int'l Law. 408 (1974); von Mehren, The ForeignSovereign ImmunitiesAct of 1976, 17 Colum. J. Transnat'l L. 33 (1978); Weber, The ForeignSovereign ImmunitiesAct of 1976: Its Origin,Meaningand Effect, 3 Yale St. World Pub. Ord. 1 (1976); Note, Sovereign Immunity-Limits of Judicial Control-The Foreign Sovereign Immunities Act of 1976, Pub. L. No. 94-583, 90 Stat. 2891, 18 Harv. Int'l L.J. 429 (1977) [hereinafter cited as Sovereign Immunity]; Note, Sovereign Immunity-Proposed Statutory Elimination of State Department Role-Attachment, Service of Process and Execution-SenateBill 566, 93d Congress, 1st Session (1973), 15 Harv. Int'l L.J. 157 (1974) [hereinafter cited as Proposed Statutory Elimination]; Note, The Immunity of ForeignSovereigns in U.S. Courts-ProposedLegislation, 6 N.Y.U. J. Int'l L. & Pol. 473 (1973); Note, ProposedDraftLegislationon the Sovereign Immunity of ForeignGovernments: An Attempt to Revest the Courts with a JudicialFunction, 69 Nw. U. L. Rev. 302 (1974) [hereinafter cited as Proposed Draft Legislation]; Note, The Problem of Execution Uniformity Under the Foreign Sovereign Immunities Act of 1976 and FederalRule of Civil Procedure69, 12 Val. L. Rev. 569 (1978) [hereinafter cited as Problem of Execution Uniformity]; Note, The Statutory Proposal to Regulate the JurisdictionalImmunities of Foreign States, 6 Vand. J. Transnat'l L. 549 (1973); 4 Brooklyn J. Int'l L. 146 (1977). I. THE CONCEPT OF SOVEREIGN IMMUNITY The concept of sovereign immunity embodies the principle that the government of a nation, state, or political subdivision thereof may not be subjected to process in a court of law without its consent.5 No person may compel an immune sovereign to litigate claims against it, irrespective of the legitimacy of those claims or the wrongfulness of the governmental conduct giving rise to the claims. This general principle, however, is subject to numerous exceptions and qualifications. The law of sovereign immunity draws a fundamental distinction between the domestic sovereign and foreign states." The privilege of immunity extends to both, but its underlying rationale differs depending upon which kind of sovereign is involved. Consequently, rules of foreign state immunity have developed independently of those regulating immunity in the municipal context. A. The Roots of Sovereign Immunity. 1. Sovereign Immunity in Municipal Law Sovereign immunity in domestic law shields the United States government 7 from lawsuits by private citizens without its consent.8 Such 5. The general principle was first formulated in Schooner Exch. v. McFaddon, 11 U.S. (7 Cranch) 116, 137 (1812). Accord Guaranty Trust Co. v. United States, 304 U.S. 126, 134 (1938); United States v. Diekelman, 92 U.S. 520, 524 (1875). 6. In United States v. Lee, 106 U.S. 196, 209 (1882), Justice Miller noted that sovereign immunity of foreign states is based on different considerations from those giving rise to immunity of the domestic government. See National City Bank v. Republic of China, 348 U.S. 356, 358-59 (1955); Guaranty Trust Co. v. United States, 304 U.S. 126, 132-36 (1938); Ulen & Co. v. Bank Cospodarstwa Krajowego (National Economic Bank), 261 A.D. 1, 4-5, 24 N.Y.S.2d 201, 204 (1940). 7. State governments generally also enjoy immunity from suit in their own courts. See Railroad Co. v. Tennessee, 101 U.S. 337 (1879); Beers v. Arkansas, 61 U.S. (20 How.) 527 (1857); Kramer, The Governmental Tort Immunity Doctrinein the United States 1790-1955, 1966 U. Ill. L.F. 795; Van Alstyne, Governmental Tort Liability: A Decade of Change, 1966 U. Ill. L.F. 919. A more complicated issue is whether state governments may be sued in federal court. See Engdahl, Immunity and Accountabilityfor Positive Governmental Wrongs, 44 U. Colo. L. Rev. 1, 7-12 (1972). For a case discussing the immunity of one state in the courts of another, see Nevada v. Hall, 440 U.S. 410 (1979). See generally Martiniak, Hallv. Nevada: State Court Jurisdiction Over Sister States v. American State Sovereign Immunity, 63 Calif. L. Rev. 1144 (1975). 8. See Feres v. United States, 340 U.S. 135, 139-40 (1950); United States v. Sherwood, 312 U.S. 584, 586 (1941); Borchard, GovernmentalResponsibilityin Tort (pt. 7), 28 Colum. L. Rev. 577 (1928) [hereinafter cited as Borchard I]; Borchard, Governmental Responsibility in Tort (pts. 4-6), 36 Yale L.J. 1, 757, 1039 (1926-27) [hereinafter cited as Borchard II]; Borchard, Governmental Liability in Tort, (pts 1-3), 34 Yale L.J. 1, 129, 229 (1924) [hereinafter cited its Borchard III]; Jaffe, Suits Against Governments and Officers: DamageActions, 77 Harv. L. Rev. 209 (1963); consent has been given statutorily for many types of actions, but its existence does not detract from the validity of the basic principle of immunity.9 This principle is rooted in the twelfth century English feudal system, in which each petty lord held his own court to settle the disputes of his vassals.' 0 Because the lord controlled the court, as a matter of practical necessity it was powerless to coerce him. The petty lord, however, was vassal of the king or a higher lord and was subject to suit in the latters' courts. Only the king, who stood at the apex of the feudal pyramid, was completely immune from suit, for no court existed higher than his own." This system of sovereign immunity was based on the impracticability of coercing a lord or the king in their own courts, rather than on any abstract notion that the king could do no wrong.' 2 Indeed, because the feudal system admitted the possibility that the king could do wrong, the "petition of right" developed to hold him accountable. 3 This petition, dating from the thirteenth century, was distinguished from the "petition of grace" and could not rightfully be denied by the king.' 4 Thus, it represented a mechanism to circumvent the sovereign's personal right of immunity from suit. In the sixteenth century the conceptual view of the sovereign changed, and immunity from suit became premised on the idea that the sovereign could do no wrong. Thomas Hobbes and, to a lesser extent, Jean Bodin established the proposition that the king was above the law in the sense that he was the law-giver appointed by God. Thus, the king could not be subjected to the indignity of suit by his subjects.' 5 This fundamental shift in the perception of the king, giving him the spiritually sovereign role that had previously been reserved to the church, corresponded to secular developments. The Jaffe, Suits Against Governments and Officers: Sovereign Immunity, 77 Harv. L. Rev. 1 (1963) [hereinafter cited as Jaffe I]. 9. See, e.g., Dalehite v. United States, 346 U.S. 15, 26-33 (1953); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 687-97 (1949); White v. Administrator of Gen. Servs. Admin., 343 F.2d 444, 447 (9th Cir. 1965). Federal consents to suit include the Tucker Act of 1887, ch. 359, 24 Stat. 505 (codified in scattered sections of 28 U.S.C.); the Suits in Admiralty Act of 1920, ch. 95, 41 Stat. 525 (codified in scattered sections of 46 U.S.C.); and the Federal Tort Claims Act of 1946, ch. 753, tit. IV, 60 Stat. 842 (codified in scattered sections of 28 U.S.C.). 10. See Engdahl, supra note 7, at 2-5; Jaffe I, supra note 8, at 1-19. 11. Engdahl, supranote 7, at 3 n.6 (citing 1 F. Pollock & F. Maitland, History of English Law 518 (2d ed 1959)); see Nevada v. Hall, 440 U.S. 410, 414-15 (1979). 12. Engdahl, supra note 7, at 3 n.7; Jaffe I, supra note 8, at 3-4. 13. Engdahl, supra note 7, at 3; Holdsworth, The History of Remedies Against the Crown, 38 L.Q. Rev. 141, 149 (1922). 14. Engdahl, supra note 7, at 3; Holdsworth, supra note 13, at 148-50. 15. See Borchard II, supra note 8, at 785. The seminal works on sovereignty are J. Bodin, Six Livres de la R1publique (4th ed. 1579) (1st ed. 1576) and T. Hobbes, Leviathan (1651). centralization of political functions and the concentration of military and economic power in the king's hands contributed to the rise of the nation-state in the form of a monarchy. These parallel spiritual and political developments transformed the personal immunity of the king as an individual into an institutional immunity of crown and state.'6 That transformation marks the birth of the modern concept of sovereign immunity. Writing approximately a century after Hobbes, Blackstone stated that the king "is not only incapable of doing wrong, but even of thinking wrong."17 Blackstone, however, was sufficiently a realist to disbelieve in the factual impossibility of an injustice done by the king. Instead, he relied on the legal fiction that any wrong done in the king's name was, in the eyes of the law, not done by the king at all.' 8 Blackstone thus justified the continuation of the practice of vesting immunity in the crown, but noted that the petition of right and the possibility of maintaining actions against government officers personally were the means of redress for wrongs committed in the name of the crown. 19 Through Blackstone, the monarchistic doctrine of sovereign immunity was introduced to the American colonies. Although it had limited application to the early American confederation, a number of factors combined to cause the retention of sovereign immunity in the United States. An important practical reason for maintaining the doctrine was the difficult financial position of the states, which sought to insulate themselves from crippling private claims. 20 Of course, the nature of a confederacy required an exception to a state's immunity when disputes arose between two states. Such disputes were best settled in a superior federal tribunal. Thus, the states initially agreed to be subject to suit only by each other in a federal tribunal.21 Later, the Constitution further abrogated states' immunity from suit in federal court by providing for suits between states and citizens of another state.22 The eleventh amendment subsequently restored states' immunity in certain limited circumstances. 23 16. Laski, The Responsibility of the State in England, 32 Harv. L. Rev. 447, 447-53 (1919); Pugh, HistoricalApproach to the Doctrineof Sovereign Immunity, 13 La. L. Rev. 476, 478-79 (1953). 17. 1 W. Blackstone, Commentaries on The Laws of England *246 (emphasis omitted). 18. See id. at *238-39. 19. See Engdahl, supra note 7, at 4-5. 20. Id. at 6. 21. Id. 22. U.S. Const. art. 3, § 2, cl. 1. The Constitution provides that the judicial power shall extend "to Controversies between two or more States; between a State and Citizens of another State; ... and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects." Id. The Supreme Court affirmed a state's lack of immunity from suit by a private citizen from another state in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793). See generally Engdahl, supra note 7, at 6-7. 23. U.S. Coast. amend. XI; see Engdahl, supra note 7, at 8-11. 1981] Initially, the more important issue was the amenability to suit of a state or the federal government in its own courts. A number of arguments were made early on for the inapplicability of the monarchistic concept of immunity to a republican system.2 4 Nevertheless, Americans adopted the doctrine of sovereign immunity, partly for the practical reason noted above, partly by default. Administratively, it was considered too difficult to oblige the federal executive to enforce federal court orders issued to the federal government.2 Notwithstanding the acceptance of the sovereign immunitN doctrine in United States law, a strong distaste for governmental immunity remained from the political climate preceding the revolution.2 Accordingly, redress for governmental wrongs was provided in the form of personal official liability. Government officers were held personally liable for official acts that the courts found unsupported by law.2 7 This harsh rule resulted in the considerable erosion of immunity in the United States. After the Civil War, sovereign immunity re-emerged as a strong doctrine in United States law. As the responsibilities of government became more complex, the need for immunity became more acute. The Supreme Court acknowledged this need, recognizing an inherent right on the part of governments to protect themselves against suit.2 In an 1868 case involving a government owned vessel, the Court stated that [t]he doctrine rests upon reasons of public policy.... It is obvious that the public service would be hindered, and the public safety endangered, if the supreme authority could be subjected to suit at the instance of every citizen, and consequently controlled in the use and disposition of the means required for the proper administration of the government.2 9 The historical development of sovereign immunity reveals a significant pattern. The doctrine originated for practical reasons inherent in the English feudal system. Subsequently, monarchist political theory turned immunity into an absolute concept. Imported into the United States because of historical circumstance, that concept was disfavored and gradually eroded. 30 It revived in modern times, however, for vastly different policy reasons concerned with the unhampered functioning of a complex modern government. 3' This pattern is significant in that it attests to the doctrine's durability and flexibility. Even though it has been justified, at various times, by very different rationales and has been operative in vastly different political systems, it has remained intact for eight centuries. Notwithstanding the changes in underlying policies, the doctrine has retained its original conceptual components of (i) sovereign governmental power, (ii) immunity vested in that power, and (iii) consent voluntarily grantable by that power. As will be seen, that pattern bears a resemblance to the development of sovereign immunity in the international context. 2. Sovereign Immunity in International Law The classic formulation of sovereign immunity in the international legal system was advanced by Chief Justice Marshall in The Schooner Exchange v. McFaddon.32 In that case, the Chief Justice stated: One sovereign being in no respect amenable to another; and being bound by obligations of the highest character not to degrade the dignity of his nation, by placing himself or its sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory only under an express license, or in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him. This perfect equality and absolute independence of sovereigns, and this common interest impelling them to mutual intercourse, and an interchange of good offices with each other, have given rise to a class of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive territorial jurisdiction, which has been stated to be the attribute of every nation. 33 Although this case was decided in 1812, it has retained remarkable vitality and is frequently cited today.3 4 Both American and foreign courts have relied on Chief Justice Marshall's opinion to such an extent that The Schooner Exchange can be characterized as the seminal case for the modern development of sovereign immunity in the international context. In The Schooner Exchange, United States plaintiffs sought to attach a French military vessel that was alleged to have been seized wrongfully by the French government. The latter defended by interposing a claim of sovereign immunity. The Supreme Court accepted that defense, holding that the vessel could not be seized and that the French government could not be compelled to litigate its ownership, because sovereign immunity shielded it from legal process in courts of the United States. 35 Chief Justice Marshall derived the principle of immunity of foreign governments from the independence and sovereignty of every nation. 36 He began with the fundamental axiom of modern political theory that each nation enjoys complete and absolute sovereignty within the boundaries of its territory. Consequently, when another nation enters upon that territory in any capacity, it is subject to the laws and judicial power of the host state, unless the latter agrees not to exercise its absolute territorial power. Marshall found that in practice all nations had consented to a relaxation of their complete territorial jurisdiction in cases involving foreign states. Such consent, which could be express or implied, had through common usage come to be expected by every state when entering a foreign territory. Marshall gave several reasons why nations had generally consented to waive their territorial power. First, all nations are considered to possess equal rights and equal independence in the world community. If one nation purports to judge the actions of another, the principles of equality and independence suffer. One nation cannot adjudicate the rights of another without thereby implying coercion and superiority. In order to avoid any inference of dependence and inequality, nations mutually agree upon the principle of sovereign immunity. 37 Another reason for extending sovereign immunity to foreign states is a desire not to affront the latters' dignity and honor. Justice Marshall viewed the potentially humiliating subjection to legal process as incompatible with formal and orderly conduct of diplomacy and foreign relations. Consuls and ambassadors are considered the official representatives of governments, which in the Chief Justice's time were frequently monarchies. He believed that any affront to emissaries' of China, 348 U.S. 356, 359 (1955); International Ass'n of Machinists & Aerospace Workers v. OPEC, 477 F. Supp. 553, 565 (C.D. Cal. 1979), aff'd, 649 F.2d 1354 (9th Cir. 1981). 35. 11 U.S. (7 Cranch) at 136-37. 36. Id. at 136. 37. Id. at 137. dignity could constitute an insult to the king or prince they represented, with potentially disturbing effects on international relations and damage to the foreign policy of the host country. 38 Finally, Marshall reasoned that any nation which sends emissaries, dignitaries, or military personnel abroad cannot have an intention of subjecting such persons to the authority of a foreign power. The very purpose of their mission requires independence from the host state and absolute allegiance to the home government. The host state's consent to receive such persons implies a consent to extend the rights and privileges necessary for the accomplishment of their mission.39 Sovereign immunity should thus be seen as a principle founded on the express or implied consent of each host country, extended for policy reasons. At the time Chief Justice Marshall wrote, those policy reasons were persuasive primarily as a matter of comity and mutual intercourse, in that each nation wished to secure for itself the benefits it extended to other states. Mutual consent to grant immunity had thus reached the status of custom and general practice among nations. As Marshall pointed out, however, that consent could be withdrawn at any time if the host country considered it expedient. Marshall required only that such denial of immunity be effected upon advance notice. Notice was necessary because the practice of extending immuansitya wmaasttseor woifdceospurrseea.d40that other nations were justified in expecting it Chief Justice Marshall's analysis of sovereign immunity should be viewed as distinguishing between its conceptual framework and its underlying policy objectives. The conceptual basis of sovereign immunity has remained constant. 41 Sovereign immunity is founded on the consent of the host country. States continue to consider themselves entitled to withdraw or alter the terms of their consent to immunity. 42 Governments have treated the granting of such consent as a political bargaining chip to be given or withheld to influence the conduct of other nations. 43 Governments have also considered it appropriate to withdraw their consent when the nation claiming immunity was an "unfriendly" power. 44 Thus, Marshall's view of sovereign immunity as a voluntary waiver of absolute territorial power has been accepted and has remained essentially intact as the proper framework. By contrast, the policy reasons underlying sovereign immunity have changed significantly since The Schooner Exchange was decided.4 5 In Marshall's opinion, the principle of immunity primarily served the diplomatic realities of his time, in which equality and respect among nations were essential for political stability. The contemporary policy underlying sovereign immunity, however, is to mutually protect essential governmental functions from harassing and interfering litigation. 46 Nations are now active in numerous international areas other than diplomacy. It is essential that activities in the military, economic, and political spheres be protected from infringement by private persons, at least to the extent that they are related to important public and governmental functions. 47 Additionally, the egalitarian policies emphasized by Marshall are less persuasive and less important today because intercourse among nations is now conducted from a perspective of "realpolitik" that reflects differences in status. Moreover, dignity and honor are not of great import for non-monarchical governments that are essentially devoid of personality. The remarkable endurance of Chief Justice Marshall's opinion in The Schooner Exchange lies not in its articulation of policy-for that has changed sustantially-but in its creation of a coherent framework in legal and political theory for the concept of sovereign immunity. clearly commercial case as to which the defendant, Cuba, had previously waived immunity. Id. at 26. The State Department's suggestion was given in return for Cuba's release of a hijacked airliner. ProposedDraft Legislation, supra note 4, at 312 n.49. 44. See Dade Drydock Corp. v. M/T Mar Caribe, 199 F. Supp. 871, 874 (S.D. Tex. 1961). In Mar Caribe, Cuba was not allowed to plead sovereign immunity because diplomatic relations with the United States had been severed. 45. Jurisdictional Immunity, supra note 3, at 1163-65, 1169-70; see Alfred Dunhill of London, Inc. v. Cuba, 425 U.S. 682, 695-705 (1976); Bishop, New United States Policy Limiting Sovereign Immunity, 47 Am. J. Int'l L. 93, 104-06 (1953); Lauterpacht, supra note 3, at 230-31. For an extensive historical and policy treatment, see Harvard Law School, Draft Convention of the Competence of Courts in Regard to Foreign States, 26 Am. J. Int'l L. 451 (Supp. 1932). See generally Von Mehren, supranote 4, at 37-43 (shift towards restrictive doctrine). 46. Comment, Judicial Adoption of Restrictive Immunity for Foreign Sovereigns, 51 Va. L. Rev. 316, 321-24 (1965) [hereinafter cited as JudicialAdoption]; see Friedmann, Some Impacts of Social Organizationon InternationalLaw, 50 Am. J. Int'l L. 475 (1956); Lauterpacht, supra note 3, at 226-41; Schreuer, Some Recent Developments in the Law of State Immunity, 2 Comp. L.Y.B. 215 (1978). 47. Friedmann, supra note 46, at 480. Friedmann reduces the range of protected government activities to a "hard core of an irreducible minimum of government activities." Id. (emphasis omitted). Fluctuations of policy thus do not disturb the concept that a foreign state's immunity exists only by consent of the host country. United States courts over the course of time have been able to advance a variety of justifications for the existence of sovereign immunity, yet have always referred to the reasoning of The Schooner Exchange4.8 3. Comparison of Immunity in Municipal and International Law While sovereign immunity in international law has withstood substantial changes and yet remained essentially the same in effect, municipal immunity has been weakened substantially. It is, therefore, instructive to briefly compare the two doctrines. Municipal immunity is an absolute concept considered inherent in the nature of government. Because the reasons for its existence are eminently practical, such as the difficulty of compelling the king to appear in his own court, both medieval and modern writers consider immunity a central and indispensable aspect of government.40 International sovereign immunity, by comparison, is a relative concept. It is not inherent in or necessary to the international order or the interaction among states, but rather depends entirely on the willingness of each nation to cede part of its territorial power. The concept permits negation of the privilege it embodies in that any nation can reassert its territorial prerogative by subjecting a foreign state to judicial process. 50 Municipal immunity, through legislation and judicial practice, has been eroded to a far greater extent than foreign states' immunity. Most legal systems have consented to great curtailments of immunity by developing numerous means by which citizens can bring almost any legal action against their own government. 5 Sovereign immu48. See Berizzi Bros. Co. v. S.S. Pesaro, 271 U.S. 562, 571-74 (1926), in which the Court relied heavily on The Schooner Exchange in extending immunity to commercial vessels of foreign states. Thirty years later, the Supreme Court again invoked Chief Justice Marshall's opinion when it denied immunity to a foreign state from counterclaims to an action instituted by the foreign state. National City Bank v. Republic of China, 348 U.S. 356, 362-65 (1955). 49. Compare Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907) (municipal immunity is based "on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends") (Holmes, J.) with Blackstone, supra note 17, at *242 ("[N]o suit or action can be brought against the king . . . . For all jurisdiction implies superiority of power: authority to try would be vain and idle, without an authority to redress; and the sentence of a court would be contemptible, unless that court had power to command the execution of it: but who . . . shall command the king?"). 50. See Lauterpacht, supra note 3, at 235. A brief comparison of immunity In municipal law and international law is provided in Nevada v. Hall, 440 U.S. 410, 414-18 (1979), and in Reeves, The ForeignSovereign Before UnitedStates Courts, 38 Fordham L. Rev. 455, 455-79 (1970). 51. See Pock, Systems of Public Responsibility in Switzerland, Germany, and Austria, 1966 U. Ill. L.F. 1023. nity in international law, however, has been eroded only recently and imperfectly.-2 Generally, the principle remains a significant obstacle to suits by private persons against foreign states. An important similarity between municipal immunity and international immunity is the distinction between concept (form) and policy (content). Both types of immunity have remained essentially unchanged in their conceptual structure. Municipal immunity is conceptually inherent in the sovereign government which voluntarily may consent to be sued. International immunity is conceptually derived from the territorial prerogative of each nation, which voluntarily relinquishes a part of that power. The constancy of each of those frameworks, however, has not prevented significant changes in the policies underlying each type of immunity. The modern policies for each focus on the smooth administration of government and international relations, whereas formerly immunity was concerned with the sovereign's power and dignity. The foregoing observations raise an important question about international sovereign immunity. As noted, the modern policies underlying the two types of immunity are remarkably similar. At the same time, international immunity appears to be a more relative concept than municipal immunity, because it is dependent on each host state's relinquishment of territorial power. The question arises why the weaker concept of international immunity has not eroded to the same extent as its stronger counterpart in the municipal context. One might expect that the similar modern policies underlying the two immunities would cause a similar pattern of erosion. Nevertheless, international immunity has retained far greater influence than municipal immunity. That discrepancy may, in large part, be due to the differences between the national and the international legal order. The existence of a sovereign lawgiver in the nation-state permits waivers of immunity to develop on a rational and consistent basis. Moreover, municipal immunity has a history of governmental consent to suit by virtue of the English "petition of right" to the king.53 The international order, by comparison, lacks a supreme sovereign and operates in the anarchical system of nations. That lack, combined with the natural vagaries of a principle based largely on custom and comity, has greatly impeded a rational progression towards the abandonment of sovereign immunity. International sovereign immunity has certainly eroded to some extent, as evidenced by the shift from the absolute to the restrictive doctrine. This shift, however, occurred in a random manner. Moreover, a closer examination of this shift suggests a new and more 52. See Reeves, supra note 50, at 469. 53. See supra notes 12-14 and accompanying text. rational approach to international immunity and the promotion of policies that resemble those operative in municipal immunity. B. The Absolute Doctrine and the Restrictive Doctrine 1. Major Differences Sovereign immunity was traditionally a firm rule prohibiting suit against a foreign state under any circumstances, except by its consent. More recently, some countries began to recognize exceptions to the rule. Thus developed two versions of sovereign immunity, the "absolute" rule and the "restrictive" rule.5 4 The latter is now accepted by the vast majority of states, but the distinction remains important as an analytical tool. s5 The restrictive view would extend immunity to foreign states only for legal actions arising out of certain types of acts. In order to distinguish acts entitled to immunity from those that are actionable, the restrictive doctrince recognizes acta jure imperii and acta jure gestionis. The former label designates acts of a governmental nature, whereas the latter means acts of a commerical or private nature. Immunity is granted only with respect to acts of public character. Various tests have been formulated to categorize the acts of foreign states according to their public or private character. The two most commonly used tests focus, respectively, on the nature and the purpose of the activity in question. 57 The "nature" test, for example, would deny immunity from legal actions arising out of an ordinary commerical contract, even if the contract had been concluded for the purpose of procuring governmental goods, such as military equipment. The "purpose" test would grant immunity if such a contract had a public purpose, but might deny immunity in the case of a governmental regulation intended to have a commercial effect. 8 Another line of thought eschews both the "nature" test and the "purpose" test and opts for identifying specific activities that will be immune from judicial inquiry.59 Actions not falling within the categories identified will not be entitled to immunity. The exempted areas of government activity include such public functions as diplomacy, military operations, and internal administrative acts. Finally, one scholar argued that a government's acts should be considered public only when a private person would be incapable of performing them. 60 Thus virtually any contract, including debt instruments issued by a government, would be actionable because private persons are able to enter into such transactions. The set of immune activities would be reduced to legislative, military, and similar functions. The absolute doctrine avoids the difficult distinctions sought to be made by the foregoing tests. It simply extends immunity to activities by a foreign state, irrespective of their public or private nature, unless the state has waived immunity.6' Because all acts of a government are by definition "governmental" and serve a public purpose, however indirectly, the proponents of this view argue that the public-private distinction is untenable and that all activities by governments should be immune. 2. Underlying Policies The dual problems of absolute versus restrictive doctrine and public versus private acts have been thought to hinge on the proper definition of governmental acts. 62 That perception, while not necessarily incorrect, has obscured more fundamental problems, the solution of which would have aided in defining a governmental act for purposes of sovereign immunity. No inquiry has been made comparing the respective policies that are served by the different versions of the restrictive doctrine. The results of such an inquiry would have redirected the arguments from their focus on terminology and concepts to the crucial issue of which underlying policy best serves the contemporary international political and economic order. It may be unfair to suggest that no one has attempted an analysis of the policies underlying sovereign immunity. Several commentators have correctly identified the inapplicability of the policies inherent in the absolute doctrine to contemporary international relations. 3 In their analysis, the absolute version of sovereign immunity reflects a deep concern with the dignity and inviolability of foreign states. That concern was appropriate, and even necessary, at a time when stability in the international order depended heavily upon mutual respect and equality among states. Moreover, they reasoned, nations rarely engaged in commerical activities that would expose large numbers of private individuals to potential loss. Consequently, political concerns naturally dominated the minimal private interests. While these factors justified the absolute doctrine in the nineteenth and early twentieth century, these critics recognized that they were inapplicable or substantially changed today. Thus, they advocated moving away from the absolute doctrine towards the restrictive doctrine, accommodating new conditions and growing private interests. 4 Scholars who advocated this analysis, however, failed in two major respects. First, they did not place their analysis in the context of Chief Justice Marshall's theoretical framework set forth in The Schooner Exchange. Second, they neglected to include a systematic evaluation of the policies inherent in different versions of the restrictive doctrine. The failure to refer back to Marshall's schema in The Schooner Exchange weakens the policy argument in favor of the restrictive doctrine. The Chief Justice premised the existence of immunity on the consent of the host country and allowed for the possibility of a later withdrawal of such consent. Moreover, he recognized specific policy reasons, operative in limited situations, for which immunity was extended among nations. That theory permits a host country to extend immunity upon any conditions it may choose and to alter those conditions at will. 05 The restrictive doctrine can thus be accommodated within Marshall's schema. Changing circumstances in the international order create issues different from those recognized by Marshall. Accordingly, it bears examination whether a host country should change the conditions upon which it extends immunity in order to account for the new situations. That examination is embodied in the policy analysis that discredits the absolute doctrine and indicates that immunity should be extended under a more restrictive rule. 63. See, e.g., Bishop, supra note 45; Fensterwald, supra note 62; Friedmann, supranote 46; Garcia-Mora, supra note 3; Lauterpacht, supra note 3; Lowenfeld 11, supra note 3; Timberg I, supra note 3. 64. See Garcia-Mora, supranote 3, at 343-54. But see Weber, supra note 4, at 81 n.124 (listing several authors who advocated adherence to the absolute rule). 65. See supra notes 36-44 and accompanying text. The great flexibility of Chief Justice Marshall's framework facilitates a shift to the restrictive doctrine. By emphasizing the consent of the host country, Marshall permits changes in the conditions of that consent without affecting the basic framework of immunity. In effect, his concept of sovereign immunity can account for vastly different policies over a period of time without damage to its basic structure, simply by changing its attendant conditions. Thus, adoption of the restrictive doctrine does not constitute a fundamental change in sovereign immunity, but merely alters its conditions in response to new circumstances that require new policies. Viewed in this light, the shift from the absolute to the restrictive doctrine is a relatively modest change that does not threaten the basic concept of sovereign immunity. Indeed, other countries have accomplished the change with little difficulty, without losing sight of the importance of sovereign immunity. 66 American courts, however, dogmatically adhered to the absolute doctrine on the basis of precedent until 1952, invoking the limited power of the judiciary in matters of foreign policy.6 7 The failure to apply Chief Justice Marshall's schema, however, is far less serious than the failure to analyze thoroughly the policies inherent in different forms of the restrictive doctrine. The American law of sovereign immunity has never developed a unified and coherent view of the restrictive doctrine because it lacked a thorough policy analysis. Indeed, that failure is reflected even in the FSIA version of restrictive immunity, which is based on a simplistic and superficial analysis of the operative policies. 68 The policy underlying the restrictive doctrine should not be summarized in the formula that private interests should be protected in a world of increasing trade between private persons and foreign states.69 Although that characterization is not incorrect, it is misleading. Its generality and one-sidedness fails to account for the subtle 66. For discussions of the restrictive doctrine in other countries, see S. Sucharitkul, supranote 3; Castel, Immunity of a Foreign Statefrom Execution: French Practice,46 Am. J. Int'l L. 520 (1952); Lalive, L'Itmnunite de Juridictiondes ktats et des Organisationsinternationales,[1953] III Hague Academy Int'l L. Recueil des Cours 205 (1953); Lauterpacht, supra note 3. 67. See Chemical Natural Resources, Inc. v. Venezuela, 420 Pa. 134, 170, 215 A.2d 864, 881 (Musmanno; J., dissenting), cert. denied, 385 U.S. 822 (1966). But see Cardozo, JudicialDeference to State Department Suggestions: Recognition of Prerogative or Abdication to Usurper?, 48 Corn. L.Q. 461 (1963). 68. See infra notes 252-273 and accompanying text. 69. In Alfred Dunhill, Inc. v. Cuba, 425 U.S. 682 (1976), the Court described the policy supporting the restrictive view as assuring "those engaging in commercial transactions with foreign sovereignties that their rights will be determined in the courts whenever possible." Id. at 699. The Court also made reference to "the enormous increase in the extent to which foreign sovereigns had become involved in international trade." Id. at 702. balancing of competing interests that should be the real thrust of the restrictive doctrine. In general form, those interests are the need of foreign states to discharge their major functions free from harassing litigation and the desire of private individuals to have their claims against foreign states adjudicated according to law. These interests conflict whenever the adjudication of a private claim against a foreign state interferes in the latter's functions. The major policy objective of the restrictive doctrine should be to translate, in principled fashion, that general formulation into concrete results. That objective is achieved by identifying the conflict situations, as well as the specific competing interests, and resolving the conflict in favor of the weightier interests. An examination of the basic structure of the restrictive doctrine reveals that its thrust is toward that objective. Any restrictive rule identifies certain situations in which the governmental interest prevails and others in which the private interest is deemed more important. For example, one version of the restrictive doctrine extends immunity to foreign states against legal action arising from their public debt. 70 Arguably, that result is based on the premise that litigation over public debt raises a fundamental conflict of interestsvindication of the private claim and non-interference in governmental functions. That conflict is resolved in favor of the latter because raising money is a sufficiently important public function to outweigh the private interest in recovery on claims against the foreign state. Another version of the restrictive doctrine, extending immunity only for acts that cannot be performed by private persons, would permit legal action concerning public debt. 7' Accordingly, that doctrine can be described as balancing the competing interests differently. Each version of the restrictive doctrine can be analyzed in terms of such balancing judgments. That analysis, however, has never been undertaken. Therefore, the different ways of resolving conflict situations were never precisely and systematically identified, and an effective policy comparison of the various versions was impossible. Moreover, the lack of an examination of those policy judgments hindered the development of a more finely tuned restrictive rule that would reflect a careful balancing of the competing interests. Instead, the restrictive doctrine became a rough rule of thumb that relied on the inadequate "public" and "private" labels. The doctrine did not articulate the underlying delicate balancing process; much less did it consciously work with that process. 70. See Victory Transp., Inc. v. Comisaria General de Abastecimientos y Transportes, 336 F.2d 354, 360 (2d Cir. 1964), cert. denied, 381 U.S. 934 (1965). But see Goodman, supra note 3, at 904 (criticism of public debt criterion). 71. See von Mehren, supra note 4, at 49, 54. While the balancing of competing interests should be the major policy objective of sovereign immunity, a secondary policy should be to promote a coherent and stable international legal order. Successful implementation of this policy would facilitate interaction and trade among states and between states and private persons. Accordingly, the restrictive doctrine should be cast in the form of a clear rule that affords predictable results and conveys a sense of fairness and consistency. American scholars and judges have recognized this secondary objective, but have generally failed to implement it.72 In summary, the restrictive doctrine should be viewed as a particular conception of sovereign immunity, formed within the framework created by Marshall. It embodies a policy responsive to new social and political conditions and is conceptually based on the right of a host country to change the terms of its consent to foreign states' immunity. Most nations have adopted the restrictive doctrine; thus, it may appear unnecessary to justify it by reference to Marshall's theoretical framework or by a detailed analysis of its policy objectives. The usefulness of the above discussion, however, lies in its applicability to future problems that will require refinements and corollaries in the law of sovereign immunity. Although widely accepted, the restrictive doctrine is far from being a uniform and easily applicable rule. II. MAJOR PROBLEMS IN THE LAW OF SOVEREIGN IMMUNITY A. Dominance of the Executive Branch At an early date, United States courts developed the practice of seeking advice from the executive branch of the government on questions of sovereign immunity. 3 As early as The Schooner Exchange V. McFaddon7,4 the Supreme Court made reference to the special power of the executive in matters of foreign relations.75 Chief Justice Marshall gave no indication, however, that advice from the executive branch would count as more than one of many factors in the Court's decision. Nonetheless, subsequent cases gave increasing weight to exprejudgment attachments and all in rem actions. It may have become apparent to the drafters, however, that the new bases of in personam jurisdiction, as broad as they are, do not offer an effective substitute for admiralty in rem actions. 4 The latter often involve defendants who cannot be reached with long-arm jurisdiction, their only contact with the forum being the presence of a vessel they own.31 5 Moreover, disputes involving foreign states often arise from shipping transactions or accidents caused by vessels. Those factors had made the maritime lien one of the most frequently invoked procedures in actions against foreign states. 31 6 Thus, it was undesirable to abandon admiralty in rem actions along with the general preclusion of in rem proceedings. The obvious solution was to preserve the maritime lien but convert it to an in personam claim in order to keep intact the policy of avoiding jurisdictional attachments of foreign states' property. 317 If the foregoing analysis is correct, the legislators were striving for a delicate balancing of foreign states' interests and private interests. The interest of foreign governments in avoiding the paralyzing effect of property attachment conflicted directly with plaintiffs' interests in preserving the admiralty in rem action. The legislative solution to this conflict was to permit the latter actions, but prohibit their commencement by attachment. Maritime in rem actions were simply recast in an in personam guise, although still limited to in rem recovery. That solution and the Act's general exclusion of in rem cases have been criticized on a number of grounds. One commentator notes the conceptual inconsistency of generally prohibiting in rem suits while permitting them in admiralty. 3 8 He also suggests that in some cases the in rem bases of jurisdiction may balance more finely the defendant's and plaintiffs interests than do the in personam rules.3 19 It is difficult to establish definitively whether in rem proceedings offer advantages that have not been built into the new in personam scheme. The in rem action protected foreign states by limiting their exposure to the value of the property attached, giving clear notice of the commencement of legal action, and providing the constitutionally required nexus with the forum. At the same time, it served plaintiff's interests by affording a sure means to institute legal action, virtually guaranteeing a responsive appearance by the foreign state, and encouraging satisfaction of the judgment, at least to the extent of the property attached. The FSIA, however, also achieves those objectives, although not in precisely the same form. Thus, one probably cannot find a distinct and persuasive policy reason for generally retaining in rem actions. The exception is maritime in rem actions, which are not adequately covered by the in personam rules and which the drafters therefore retained in the FSIA. The foregoing considerations, however, do not inevitably lead to the elimination of in rem actions. Since the major historical disadvantage of the in rem action-harassment of foreign states through jurisdictional property attachment-was eliminated in the FSIA, that form of action has been rendered harmless from the point of view of immunity policy. Accordingly, the in rem action should have been retained if it offers even slight benefits, or if its elimination causes excessive complexity. Sufficient benefits might be found in the suggestion that, in some cases, in rem actions balance competing interests more finely than do in personam actions. In rem actions should thus be reexamined along the lines of that suggestion and the FSIA should possibly be amended to permit in rem actions against foreign states, as long as they are not commenced through property attachment. Naturally, extending subject matter jurisdiction to include in rem actions would be meaningful only if a means exists for instituting them without attachment. The FSIA's treatment of maritime liens indicates that the legislators can conceive of in rem actions without the necessity of property attachment, notwithstanding that they felt compelled to label them "in personam." A puzzling problem related to the Act's in rem treatment results from the interaction between removal and subject matter jurisdiction. While new section 1330 limits subject matter jurisdiction to in personam claims against foreign states, section 1441(d) permits removal from state to federal court of any "civil action . . . against a foreign state. ' 320 An in rem action can thus be pursued in federal court if first commenced in state court and then removed to federal court. 321 Arguably, in rem actions cannot be instituted in state court because the Act prohibits prejudgment attachments for jurisdictional purposes. This prohibition applies to both federal and state courts and, as a practical matter, is likely to eliminate all in rem actions. Attachment of property, however, may not be a constitutional prerequisite to the exercise of in rem jurisdiction. 32 2 Accordingly, states could 320. 28 U.S.C. § 1441(d) (1976); House Report, supra note 2, at 32-33, reprinted in 1976 U.S. Code Cong. & Ad. News at 6631-32. 321. See Smit I,supra note 159, at 55. 322. Id. at 55-56. 1981] provide that in rem actions may be instituted without attachment of property. The possibility thus exists of removing to federal court in rem actions that could not originally have been brought there. The federal rules were amended in 1963 to eliminate precisely this result for in rem actions in general. 323 The FSIA reintroduces that anomaly, with its attendant undesirable forum-shopping implications, for actions against foreign states. No rationale is readily discernible to justify that disparate treatment of in rem actions against foreign states. Foreign governments have a number of special interests that justify preferential consideration in the removal area. For example, they require uniformity of treatment as provided at the federal level, as well as heightened sensitivity to their governmental status and their lack of familiarity with United States lavs.32 4 Those factors justify the liberal removal provisions of the FSIA, such as extensions of time for filing removal petititons and the allowance of removal when multiple defendants would otherwise make it impossible. 3- The special interests of foreign states in removal of actions are as equally operative for in rem actions as for other kinds of actions. Therefore, it appears reasonable to permit removal of in rem actions. This anomaly should thus not be traced to an overly liberal removal provision, but rather stems from the fact that in rem actions were eliminated in federal court but remained possible in state courts. The critical question is whether the policy supporting the elimination of federal in rem actions is equally applicable to state in rem actions. Arguably it is not, and this would justify retention of in rem actions in state court. The factors leading to the elimination of federal in rem actions were the policy against jurisidictional attachments and the superfluousness of in rem proceedings after the expansion of in personam jurisdiction. In the single instance of an in rem proceeding that had not been rendered superfluous, the legislators retained it in a modified form which left intact the policy against property attachments26 At the state level, however, in personam jurisdiction over foreign states remains dependent on state law and may be relatively narrow, or at least unclear, in some instances. As a result, there is a strong possibility that in rem proceedings will continue to play an important role in the context of legal action against foreign states. It is thus appropriate for the FSIA not to preclude them, notwithstanding the anomaly caused by their possible removal to federal court. In any event, as a 323. Id. at 55. 324. Gray v. Permanent Mission of the Congo to the U.N.. 443 F. Supp. 816, 821 (S.D.N.Y.), afj'd mem., 580 F.2d 1044 (2d Cir. 1978): House Report, supra note 2, at 32, reprintedin 1976 U.S. Code Cong. & Ad. News at 6631. 325. 28 U.S.C. § 1441(d) (1976). 326. See supra notes 292-303 and accompanying text. practical matter, the elimination of prejudgment attachments precludes the commencement of state in rem actions, at least in the immediate future. Consequently, the removal of an in rem case to federal court is likely to be an extremely rare occurrence. The FSIA might have avoided most of the above described complexities by permitting federal in rem actions as a general rule. 32 7 The benefit gained from their elimination is minimal, because the policy of protecting foreign states' property from seizure is fully embodied in the prohibition of jurisdictional attachment. Prohibiting in rem suits adds nothing to that policy. The simple deletion of the words "for relief in personam" from section 1330(a) would restore the in rem action and substantially simplify the Act's jurisdictional scheme. 4. Personal Jurisdiction a. Jurisdictionalcontacts Section 1330(b) provides that personal jurisdiction over foreign states exists if the claim is one over which the district court has original jurisdiction under section 1330(a) and if adequate service has been made under section 1608.328 This dual requirement for personal jurisdiction embodies the standards of International Shoe Co. v. Washington3 9 and McGee v. International Life Insurance Co., 33° which condition personal jurisdiction on minimum contacts between the defendant and the forum state and on adequate notice to the 331 defendant. The minimum jurisdictional contacts required by the FSIA are contained in the exceptions to immunity, set forth in sections 1605 through 1607.332 Those exceptions include actions based on any of 1981] the following: (i) a waiver by the foreign state; (ii) a commercial activity having substantial contact with the United States; (iii) an act performed in the United States in connection with a commercial activity elsewhere; (iv) an act performed outside the United States in connection with a commercial activity outside the United States if that act causes a direct effect in the United States; (v) rights in property in the United States in connection with a commercial activity carried on in the United States, if that property was taken in violation of international lav; (vi) rights in property in the United States acquired by gift or succession; (vii) rights in immovable property in the United States; (viii) certain tortious acts or omissions causing injury or damage in the United States, but excluding certain kinds of torts; (ix) maritime liens based on commercial activity; and (x) counterclaims or setoffs to legal action by the foreign state in a court of the United States or a state. 333 The legislative history provides little guidance on the factors that influenced formulation of the Act's long-arm provisions. Although the House Report discusses each of the exceptions to immunity, it focuses on their implications for immunity, rather than for personal jurisdiction. 334 The latter is addressed only briefly in stating that the FSIA incorporates a federal long-arm statute over foreign states, patterned on the one enacted for the District of Columbia. 3 . In addition, the legislators stated that they intended the Act to meet the requirements of minimum jurisdictional contacts and adequate notice embodied in InternationalShoe and McGee.33 6' The House Report states that each of the statutory immunity provisions requires either a connection between the lawsuit and the United States or a waiver by the foreign state of its immunity from jurisdiction. 337 Finally, the drafters offered a brief discussion of the jurisdictional contacts required by each of the three commercial-act bases of jurisdiction. 338 A major weakness of this approach is the fusion of different concepts. The various statutory interconnections make the provisions of sections 1605 through 1607 determinative of subject matter jurisdiction, personal jurisdiction, and immunity. This scheme places too heavy a burden on a single set of criteria that cannot possibly account for the different policies underlying three distinct concepts. Subject matter jurisdiction focuses on efficient administration of justice; personal jurisdiction is concerned with the substantiality of contacts and service of process; and immunity looks to the public nature of the acts and property at issue. Section 1605(a)( 1 ), for example, deals with waivers of immunity by foreign states. If such a waiver exists, section 1605(a) properly makes immunity unavailable. The existence of a waiver also confers subject matter jurisdiction under section 1330(a). Subject matter jurisdiction, however, should not depend on the defendant's consent or on agreement of the parties. At the same time, the waiver establishes personal jurisdiction under section 1330(b), assuming there was proper service of process. This result is also inappropriate because a waiver of immunity is not the functional equivalent of consent to jurisdiction.3 09 Under the FSIA, a waiver clause in a contract made and performed entirely outside the United States would confer federal long-arm jurisdiction. This result would unpleasantly surprise a defendant with no United States contacts who expected merely to waive the immunity defense and on that basis is forced to litigate in a distant forum.340 The FSIA thus may create too broad a basis of long-arm jurisdiction that raises constitutional questions and forces federal courts to adjudicate cases having little connection with the United States. 341 While the legislators intended to meet the constitutional requirements set forth in InternationalShoe and McGee, they ignored that those cases arose in an interstate and national context. The minimum standards established were premised on the increase of interstate commerce and communication, the dominance of a national economy, and a freedom of movement which greatly diminishes the inconvenience of defending in another state. These factors made it possible for the Supreme Court to relax the contacts requirement and instead focus on adequate notice for purposes of subjecting an out-of-state defendant to judicial power. 342 339. Compare Verlinden B.V. v. Central Bank of Nigeria, 488 F. Supp. 1284, 1300-02 (S.D.N.Y. 1980) (waiver of immunity in foreign courts is not equivalent to consent to United States jurisdiction), aff'd, 647 F.2d 320 (2d Cir. 1981) with Ipitrade Int'l v. Nigeria, 465 F. Supp. 824, 826 (D.D.C. 1978) (jurisdiction based on waiver of immunity in foreign tribunal, but court also noted existence of treaty). 340. See Waukesha Engine Div., Dresser Americas, Inc. v. Banco Nacional de Fomento Cooperativo, 485 F. Supp. 490, 493 (E.D. Wis. 1980). In this case, the court dismissed a contract action for lack of minimal jurisdictional contacts. If the contract had included a waiver of immunity clause, without a consent to jurisdiction, the FSIA arguably would recognize personal jurisdiction over the defendant. 341. See Carl, supra note 4, at 1058-63; Note, Sovereign Immunity, supra note 4, at 439-40. 342. See McGee v. International Life Ins. Co., 355 U.S. 220, 222-24 (1957). In this case, the Court referred to "the fundamental transformation of our national economy," id. at 222, and reasoned that "modern transportation and communication have made it much less burdensome for a party sued to defend himself In a State 1981] These factors are not yet present at the international level. International commerce and communication have not developed to a point where it is legitimate to equate the United States economy with the world economy for purposes of subjecting foreign defendants to the power of United States courts. The world economy does not dominate national economies to the same extent that the American economy dominates state economies. In addition, defending in a foreign country is significantly more cumbersome and inconvenient for a foreign state than defending in another state is for a United States national. In view of these considerations, due process may require more jurisdictional contacts in the international context than in the domestic context to support the exercise of personal jurisdiction. InternationalShoe and McGee may not be proper standards for evaluating the constitutionality of the Act as regards personal jurisdiction. 343 Another criticism of the statute's long-arm provisions is that they create an undesirable discrepancy between federal and state law. 3 4 Prior to enactment of the FSIA, the rules of personal jurisdiction were usually determined by state law because suits against foreign states were commonly based on federal diversity jurisdiction. To a large extent, state law also governed federal question cases in regard to personal jurisdiction. 345 The advantage of this system was that a lawyer practicing in a particular state dealt with only one set of rules. Under the FSIA, however, federal personal jurisdiction depends upon the immunity provisions of sections 1605 through 1607, whereas states will continue to apply their own personal jurisdiction rules. 3 6 Of course, questions of immunity and service of process are governed where he engages in economic activity." Id. at 223; cf. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) (due process requires defendant to have minimum contacts with forum state such that maintenance of the suit does not offend traditional notions of fair play and substantial justice); International Shoe Co. v. Washington, 326 U.S. 310, 316-17 (1945) (same). 343. Recent cases, however, have referred precisely to InternationalShoe and McGee in evaluating due process as regards suits against foreign states. E.g., Thos. P. Gonzalez Corp. v. Consejo Naci6nal de Produccion de Costa Rica, 614 F.2d 1247, 1250-52 (9th Cir. 1980); East Europe Domes. Int'l Sales Corp. v. Terra, 467 F. Supp. 383, 388-89 (S.D.N.Y.), af'd mem., 610 F.2d 806 (2d Cir. 1979). This treatment is inspired by legislative references to InternationalShoe and McGee. House Report, supra note 2, at 13, reprinted in 1976 U.S. Code Cong. & Ad. News at 6612. But see Verlinden B.V. v. Central Bank of Nigeria, 488 F. Supp. 1284, 1295 (S.D.N.Y. 1980) (court noted that the FSIA jurisdictional provisions are "much narrower" than the "farthest reaches permitted by the due process clause" as applied to some domestic long-arm statutes), af'd, 647 F.2d 320 (2d Cir. 1981). 344. Smit I, supra note 159, at 64. 345. Id. 346. Because states do not base personal jurisdiction on § 1330(b), which incorporates the immunity criteria, but rather on their own jurisdictional statutes, the states' long-arm provisions are not affected by the federal immunity provisions. See Smit I, supranote 159, at 64. by the Act in both state and federal courts. 3 7 A case might arise, therefore, in which a foreign state is denied immunity under the FSIA and consequently is subject to federal in personam jurisdiction, while it might be beyond a state's jurisdictional reach under a different set of state rules. This complex dual system of personal jurisdiction created by the FSIA causes a lack of uniformity that may lead to forum shopping and may confuse foreign states regarding their amenability to suit in the United States. 348 Finally, the Act's long-arm scheme can be criticized as being too narrow in that it fails to include "doing business" in the United States as a basis of jurisdiction. This defect is illustrated by Harrisv. VAO Intourist,Moscou, 349 a wrongful death action brought in New York to recover for the death of a tourist in a Moscow hotel fire. In personam jurisdiction could not be based on the Act's exception for tortious conduct, because that provision requires that the act or omission causing injury occur within the United States. The three variants of the commercial activity basis were also unsatisfactory. Although the claim was based on an act outside the United States related to a commercial activity outside the United States, it could not be said to have a direct effect in this country. Likewise, plaintiffs claim could not be related to a commercial activity having substantial contact with the United States. Nor could the claim be said to be based on an act in the United States related to a commercial activity elsewhere. 350 Judge Weinstein noted that the usual basis of in personam jurisdiction for tourists injured abroad was the defendant's doing business in the United States.:351 In personam jurisdiction is ordinarily sustained on that basis even if the plaintiff's claim is not related to that business. In Harris, the defendant was unquestionably "doing business" in the United States, but the Act's circumscription of "commercial activity" does not make doing business a general basis of in personam jurisdiction for claims not related to that business. Judge Weinstein therefore regretfully dismissed the case. 352 347. 28 U.S.C. §§ 1604, 1605, 1607, 1608 (1976). 348. Smit I, supra note 159, at 64. Although states use their own long-arm system, they must use the FSIA service of process method. See, e.g., 40 D 6262 Realty Corp. v. United Arab Emirates Gov't, 447 F. Supp. 710, 711-12 (S.D.N.Y. 1978); Gray v. Permanent Mission of the Congo to the U.N., 443 F. Supp. 816, 819 (S.D.N.Y.), aJJ'd mem., 580 F.2d 1044 (2d Cir. 1978). 349. 481 F. Supp. 1056 (E.D.N.Y. 1979); see Smit [, supra note 159, at 60. 350. 481 F. Supp. at 1061. 351. Id. at 1059-60. 352. Id. at 1065-66. b. Service of process Section 1608353 establishes the methods of serving process on foreign states and governs both federal and state courts. It creates a hierarchical scheme among several means of serving process. The preferred methods are in accordance with any special arrangement between plaintiff and the foreign state or, if no such arrangement exists, in accordance with any applicable international convention. If service cannot be made by those methods, section 1608 requires service to be made by return receipt mail to be dispatched by the clerk of the court to the head of the foreign affairs ministry of the foreign state. If service cannot be made through that method within thirty days, the plaintiff may have the clerk of the court send the documents to be served to the State Department, which is directed to transmit them to the foreign state through diplomatic channels. Both of the latter methods of service require that the documents be accompanied by a translation into the official language of the state to be served. In addition, plaintiffs must send along with the documents a "Notice of Suit" addressed to the foreign state and in a form prescribed by the Secretary of State. The State Department has published regulations concerning service of process on foreign states. 35 Section 1608 includes several other provisions. These impose special procedures for serving process on agencies or instrumentalities of foreign states3 55 including, significantly, service "by order of the court consistent with the law of the place where service is to be made."3' In addition, section 1608 sets a sixty-day time period for the foreign state, its agency, or instrumentality to answer 35 and establishes certain conditions for entering default judgments. 3ss The House Report states that section 1608 is intended to fill the previously existing void in state and federal law. 5 9 Prior to enactment of the FSIA, the principal obstacle to commencing an in personam action against foreign states was that no certain method of service of process existed. 360 The FSIA remedies that defect and at the same time eliminates the two major methods previously used for commencement of an action: attachment of a foreign state's property,3 1 and mailing of documents to a diplomatic mission or foreign representative. 36 2 One criticism which has been made of the Act's service provisions is that they invite unnecessary complexity by departing from Federal Rule 4(i), governing service on foreign defendants, and by relying on foreign law. 3 3 This criticism does not withstand close scrutiny. Rule 4(i), like other service of process rules, reflects a balancing of plaintiffs and defendant's respective interests in the fair commencement and notice of legal action. 3 4 The drafters of Rule 4(i), however, did not have in mind a foreign government defendant. The latter's interets, in the context of service of process, are significantly more complex than those of a private foreign defendant. For example, the cumbersome machinery of a government bureaucracy may not accommodate legal action as readily as can a private entity. Moreover, service on a state requires greater sensitivity to diplomatic and foreign relations factors than does service on private persons.36 5 These factors justify a departure from Rule 4(i) and the adoption of special service of process provisions, even at the cost of greater complexity and unusual difficulties for the plaintiff. Section 1608 essentially reflects a fair balancing of interests. The plaintiff is assured of the ability to commence legal action, but consideration is given to the special interests of foreign government defendants. 36 Section 1608, however, is subject to another criticism. Evidence exists that the service of process methods required in the absence of a treaty or special arrangement do not function well in practice.3 17 1981] Return-receipt mail to foreign states will often be ineffective in that the state may simply fail to return the receipt. Resort to the State Department may also be difficult because of potential delays or mishandling of documents transmitted through diplomatic channels and because of tensions in relations between states. 0 In addition, the Department's assigned role as courier in legal disputes could adversely affect sensitive dealings in other areas of foreign policy, with inevitable effects on its handling of the documents to be served.3 6 9 In light of these practical difficulties, two courts recently fashioned a novel method of service by telex that clearly appears to be contrary to the FSIA. 370 If these misgivings are confirmed in future cases, section 1608 will ultimately fail as an effort to reconcile the interests of the plaintiff and the foreign state. While it succeeds in accounting for those of the latter through complex procedures and State Department involvement, that effort could defeat the aim of giving the plaintiff a sure method of commencing legal action. The cumbersome requirements of section 1608 can be justified only if sensitivity to the interests of foreign states is balanced with the assurance that plaintiffs will have access to court. If section 1608 fails in that regard, it should be amended to provide for another method that satisfies the competing interests. 5. Suggested Remedies The problems inherent in the Act's jurisdictional scheme fall roughly into three categories. First, the fusion of different concepts into the criteria for immunity ignores important differences among the policies underlying those concepts. This is evidenced by the possibility that a waiver of immunity can create both subject matter and personal jurisdiction. Second, the failure to appreciate interrelations among various elements of the jurisdictional scheme results in poor coordination. For example, the drafters did not understand the full ramifications of eliminating in rem actions, and as a result drafted complex and problematic provisions on removal and maritime liens. 368. This would be the case in actions against Iran, for example, because the United States maintains no diplomatic relations with that country. Accordingly, all diplomatic communications are handled through the embassies of third countries. 369. The State Department would have a natural tendency to delay serving documents if it is involved in sensitive dealing with the country to be served. In effect, the Department's obligation to perform service of process could lead to a conflict of interests within the Department, since the discharge of that obligation could interfere with other foreign tasks. 370. International Schools Serv. v. Iran, 505 F. Supp. 178, 178-79 (D.N.J. 1981); New Eng. Merchants Nat'l Bank v. Iran Power Generation & Transmission Co., 495 F. Supp. 73, 80 (S.D.N.Y. 1980); see also Note, Jurisdiction-Service of Process on Iran, 21 Harv. Int'l L.J. 775 (1980). Third, many of the Act's provisions create difficulties when put into practice. The service of process provisions illustrate that defect. A comprehensive remedy to these problems would disentangle the different concepts, coordinate them more effectively, and attempt to wbeocrakusoeutthtehye aprreacutinclaikledlyefteoctssu.cTceheedseinedffeopretsndsehnotullyd ogfoehaacnhdo-itnh-ehr.a3n7d1 Subject matter jurisdiction is a simple concept which can easily be isolated from other aspects of the FSIA. Most importantly, it should not be tied to the criteria for immunity. Instead, federal courts should be given original subject matter jurisdiction for all actions involving foreign states. Secondly, subject matter jurisdiction should be extended to in rem actions, thus eliminating the need to convert maritime liens to in personam claims. In addition, the provision on removal would not present an anomaly if in rem actions can be brought, without jurisdictional attachment, in federal court in the first instance. Personal jurisdiction should also be isolated from the criteria for immunity. An independent basis of personal jurisdiction should incorporate the dual requirements of a sufficient nexus between the forum and the foreign state, and adequate notice to the latter. The long-arm provisions should require sufficiently substantial contacts to make it reasonable for the forum to exercise its judicial power over a foreign state, but subject to the consideration that due process may be more exacting in an international, rather than a domestic, context. At the same time, the jurisdictional bases should be broad enough to reach states "doing business" in the United States for virtually any claim against them. If it is considered desirable to limit the kinds of claims that may be brought against foreign states, such limitations should be incorporated into the separate provisions on immunity rather than into the long-arm provision. The service of process provisions should ensure access to court and notice, while displaying sensitivity to the special interests of foreign government defendants. They should not be so complex, however, that a plaintiff's ability to commence suit is seriously impaired. The present provisions achieve those goals reasonably well, although they may require revision to function more smoothly in practice. D. Enforcement of Judgments 1. The Statutory Scheme The FSIA makes considerable progress in solving the pre-1977 problems of foreign states' immunity from execution and plaintiffs' result371. See Smit I, supra note 159, at 69-70 (further remedies). An instructive model is also provided in the British State Immunity Act, 1978, which is conceptually more logical than the FSIA in keeping distinct the concepts of jurisdiction and immunity. The British Act also grants a broader basis for personal jurisdiction. The State Immunity Act, 1978, ch. 33. ing inability to enforce judgments.3 72 The Act adopts a restrictive version of immunity from execution, subjecting commercial property to execution in certain instances. The circumstances in which immunity from execution is available, however, are more extensive than those in which immunity from suit is available. Thus, some plaintiffs will find themselves unable to enforce valid judgments. 373 Neverthetlheses,lathwe sotfastouvtoerryeigpnrovimismiounsniotyn.3e7x4ecution are appropriate advances in Section 1609 sets forth a general rule of immunity from execution for the property of foreign states, subject to certain exceptions. 3 5 The exceptions are listed in section 1610, which establishes separate schemes for foreign states and agencies or instrumentalities. 37 6 As regards foreign states, the exceptions apply only to property located in the United States and used for a commercial activity in the United States.37 7 Subject to those important provisos, property may be seized for execution if (i) the foreign state has waived immunity, (ii) the property to be seized is used for the commercial activity upon which a plaintiffs claim is based, (iii) the judgment to be executed establishes rights in property taken in violation of international law, (iv) the judgment to be executed establishes rights in immovable property or in property acquired by succession or gift, or (v) the property to be seized is an insurance contract for liability on the claim that is the basis of the judgment.3 78 These same exceptions apply to agencies and instrumentalities but they affect a broader range of property. Moreover, certain additional exceptions facilitate seizure of agencies' or instrumentalities' property. 379 In addition, immunity is expressly extended to certain international organizations in the process of disbursing funds to foreign smtaitleitsa,r3y80 ptrooptheretyp.3r8o2perty of a foreign state's central bank,3' or to 372. House Report, supra note 2, at 27-28, reprintedin 1976 U.S. Code Cong. & Ad. News at 6626-27. 373. See Kahale & Vega, supra note 4, at 217. 374. See Carl, supra note 4, at 1038-40; Smit I, supra note 159, at 67; Day in Court, supra note 3, at 569. 375. 28 U.S.C. § 1609 (1976). 376. Id. § 1610(a), (b). 377. Id. § 1610(a). For agencies and instrumentalities, the property to be seized must also be located in the United States, but it need not be used for commercial activity. Instead, it is sufficient if the agency or instrumentality is engaged in commercial activity in the United States. Id. § 1610(b). 378. Id. § 1610(a)( 1 )-( 5 ). 379. Id. § 1610(b)( 1 )-( 2 ). 380. Id. § 1611(a). 381. Id. § 1611(b)( 1 ). Immunity is not available, however, if the bank has explicitly waived its immunity from execution. 382. Id. § 1611(b)( 2 ). The House Report describes the provisions on execution as furnishing a remedy to a judgment creditor if, after a reasonable period, a foreign state or its enterprise has failed to satisfy a final judgment. 38 3 The Act is intended to alter prior law, which accorded foreign states absolute immunity from execution even in ordinary commercial litigation involving the seizure of commercial assets. The drafters viewed the enforcement of judgments against foreign state property as a controversial subject marked by a trend toward limiting immunity. 38 4 That trend is evidenced by a number of treaties concluded by the United States and conventions more widely ratified.3 15 The FSIA follows the trend by "partially lowering the barrier of immunity from execution, so as to make this immunity conform more closely with the provisions on jurisdictional immunity."' 386 The policy underlying the provisions on execution reflects a rough balancing of interests, subject to the legislators' characteristic caution when breaking with a traditional rule.387 Prior law was inadequate in that it absolutely protected the interests of foreign states while disregarding plaintiffs' interests in satisfying claims that were judicially legitimized. 388 The FSIA partially corrects that misbalanced policy judgment by denying immunity in a number of situations that do not implicate sensitive interests of foreign states. 389 2. Prejudgment Attachments Both executions on property and prejudgment attachments involve seizures of a foreign state's property, yet the Act more liberally permits executions. This difference is justified for at least two reasons. First, execution is a more discriminating procedure than prejudgment attachment in that it is based on a legitimized claim and is limited to the amount of the judgment. Prejudgment attachment, by comparison, is based on potentially proper claims and occasionally on speculative assertions by the plaintiff. In addition, it is limited only by the value of the property attached. Second, plaintiffs' interests are more compelling for executions than for prejudgment attachments. Execution embodies a plaintiff's vital interest in vindicating rights that have been judicially recognized. The FSIA provides no alternative method of enforcing those rights, and 383. House Report, supra note 2, at 8, reprinted in 1976 U.S. Code Cong. & Ad. News at 6606. 384. Id. at 8, 27, reprinted in 1976 U.S. Code Cong. & Ad. News at 6606, 6626. 385. Id. 386. Id. 387. See Problem of Execution Uniformity, supra note 4, at 575. 388. See Proposed Statutory Elimination, supra note 4, at 165-66. 389. A notable exception is the provision permitting execution on property expropriated in violation of international law, 28 U.S.C. § 1610 (a)( 3 ) (1976), a situation about which foreign states are likely to be extremely sensitive. their denial would seriously compromise the policy of granting plaintiffs recourse against foreign states in non-sensitive situations. Execution is thus a vital procedure and is properly included in the statute, notwithstanding the general distaste for seizure of foreign states' prop390 erty. The main purpose of prejudgment attachments was the commencement of in rem legal action, a function now served by in personam procedures.3 91 Plaintiffs' other interests in prejudgment attachment are less significant and have been protected in part by the FSIA. Nonetheless, there are problems with the Act's less liberal approach towards prejudgment attachments. Section 1610(d) permits prejudgment attachments exceptionally to freeze property within the forum for possible satisfaction of a later judgment.392 The section requires both an explicit waiver of immunity from prejudgment attachment and a showing that the purpose of the attachment is to secure satisfaction of a possible later judgment and not to obtain jurisdiction. 39 3 A significant problem with this limitation is that it plainly does not protect a plaintiff who lacks the waiver. Such plaintiffs are exposed to a real danger that the foreign state defendant will remove its assets from the forum and, in effect, 390. The sensitivity to execution issues is shown by the Act's provision specifically extending immunity to the funds of foreign states' central banks and to military property. Id. § 1611(b); House Report, supra note 2, at 30-31, reprintedin 1976 U.S. Code Cong. & Ad. News at 6629-30; cf. id. at 21-22, 26-27, reprinted in 1976 U.S. Code Cong. & Ad. News at 6619-21, 6624-26 (denial of immunity for commercial claims, for maritime liens, for execution on certain properties and for service of process). 391. House Report, supra note 2, at 26-27, reprintedin 1976 U.S. Code Cong. & Ad. News at 6624-26; see Smit I, supra note 159, at 54-56. 392. 28 U.S.C. § 1610(d) (1976); see Smit I, supra note 159, at 65 n.98 (in the litigation between Martropico Compania Naviera, S.A. against Pertamina, defendants not only sought in vain to vacate prejudgment attachments laid before the effective date of the Act, but also made extensive efforts, including re-negotiation of various large contracts, to ensure that they would have no assets in the United States); see also von Mehren, supra note 4, at 44-45 & n.51 (sets forth the rationales underlying prejudgment attachments); Sovereign Immunity, supra note 4, at 450 (regarding the problem of a "flight of assets."). See generally Smit II, supra note 319 (regarding the enduring utility of the in rem rules). 393. A series of Iranian cases considered under what circumstances a waiver from prejudgment attachments exists. E.g., New Eng. Merchants Nat'l Bank v. Iran Power Generation & Transmission Co., 502 F. Supp. 120 (S.D.N.Y. 1980); E-Systems, Inc. v. Iran, 491 F. Supp. 1294 (N.D. Tex. 1980); Behring Int'l, Inc. v. Imperial Iranian Air Force, 475 F. Supp. 383 (D.N.J. 1979); Reading & Bates Corp. v. Nat'l Iranian Oil Co., 478 F. Supp. 724 (S.D.N.Y. 1979); see McGreevey, supra note 228, at 400-11; Comment, Prejudgment Attachment of Frozen IranianAssets, 69 Cal. L. Rev. 837 (1981); Comment, PrejudgmentAttachment of IranianAssets in the United States: Waiving Sovereign Iminmunity-Behring Int'l, Inc. v. Imperial Iranian Air Force, 13 N.Y.U. J. Int'l L. & Pol. 675 (1981); Comment, The Foreign Sovereign Immunities Act: The Use of Pre-JudgmentAttachment to EnsureSatisfac tion of Anticipated judgments, 2 Nw.J. Int'l L. & Bus. 517 (1980): 12 L. & Pol'y Int'l Bus. 1001 (1980). become judgment proof. This prospect may discourage plaintiffs lacking an explicit waiver from instituting legal action at all, thus defeating the statutory policy of adjudicating disputes that arise from non-immune activity. 394 Plaintiffs can, of course, seek to protect themselves by always including in contracts an explicit waiver of immunity from prejudgment attachment. As one commentator notes, however, that strategy is not available to plaintiffs whose actions are not based on contract. Moreover, contracts concluded before the Act's effective date may not include sufficiently explicit waivers. Even post-Act contracts may have too general a provision to satisfy the requirements of section 1610(d).3 In effect, the Act's allowance of prejudgment attachments for security purposes is too restrictive and should be made available in a wider range of circumstances. Attachment should be available in the absence of an explicit waiver by the defendant state. To control the availability of such attachments, plaintiffs might be required to show a "likelihood" or "probability" that the defendant state will remove assests from the forum to escape a possible later judgment. Prejudgment attachments should also be permitted in cases of explicit waiver, irrespective of the likelihood that assets will be removed to escape judgment. This would enable plaintiffs to protect themselves in contracts with foreign states, while putting the latter on notice of the possibility of prejudgment attachments. Moreover, if a foreign state has negotiated and contracted in regard to its immunity from prejudgment attachments, the FSIA policy of avoiding irritation does not seem operative. No policy reason exists for depriving private persons and foreign states of the freedom to negotiate and contract with respect to the valuable device of prejudgment attachments. Even the former absolute rule of immunity from suit permitted states to waive such immunity, thus avoiding the excessively protective stance now embodied in section 1610(d). Another function traditionally served by prejudgment attachment is the assurance of an orderly disposition of assets when several plaintiffs bring actions against one defendant. The order of prejudgment attachments frequently determines plaintiffs' priorities in satisfying judgments from the defendant's assets. 396 The FSIA throws this sys394. Smit I, supra note 159, at 67-69. 395. Id. at 68; see von Mehren, supra note 4, at 55-56 (parties can draft contract clause waiving immunity from suit and execution). A contract provision may be broadly drafted and intended to extend to prejudgment attachments, but if it makes no explicit reference to prejudgment attachments, it may not constitute a waiver within the meaning of section 1610(d). Id. 396. E.g., N.Y. Civ. Prac. Law § 6226 (McKinney 1980). The importance of attachment priorities is illustrated by the so-called Nigerian cement contract cases, involving numerous plaintiffs, many of whom relied on attachments of Nigerian funds to commence action and secure possible later judgments. Most of these actions tern into disarray because section 1610(d) permits only certain types of plaintiffs to establish their priority for later satisfaction of a judgment. If plaintiffs do not meet the requirement of the section, the) are unfairly disadvantaged and may find themselves obtaining meaningless judgments if the defendant state's assets have been attached by other parties. This problem could be remedied by liberalizing section 1610(d) to allow prejudgment attachments for the purpose of determining priorities among several plaintiffs. 3. Execution The Act's execution provisions are also subject to criticism for not reaching a more finely tuned balance between plaintiffs' and defendants' interests. The commercial property exception of section 1610(a)( 2 ), 397 for example, states that the property of a foreign state shall not be immune from execution if it is used for a commercial activity and located in the United States, and if the plaintiff's claim is based on that commercial activity or upon another commercial activity in the United States for which the property formerly was used. The general policy underlying that exception to immunity is sound because commercial property is not ordinarily of such a sensitive nature that the satisfaction of a judgment should be denied. The problem is with section 1610(a)( 2 ) which draws a tenuous and problematic distinction that is not supported by that policy. The clause restricts execution to judgments based on the commercial activity for which the property to be seized is or was used. The statute thus distinguishes between property related to the plaintiff's claim and property unrelated to that claim, permitting execution only upon the former. This distinction, however, places too much weight on the connection between commercial property and the activity upon which the plaintiff's claim is based. Extensive litigation may be necessary merely to determine whether the requisite nexus exists. Moreover, this potentially problematic distinction is not relevant to the operative policies. The primary goal in extending immunity from execution should be to shield a foreign state from interference in sensitive areas and from disruption of important functions. That concern, however, is independent of the nature of the plaintiff's claim. A foreign state's property does not become less sensitive if the plaintiff's were commenced well before the effective date of the FSIA. For example, in National Am. Corp. v. Nigeria, 448 F. Supp. 622 (S.D.N.Y. 1978), affJd iner., 597 F.2d 314 (2d Cir. 1979), the court stated that plaintiff's attachment order was subject to two prior attachments. Id. at 633. For an extensive listing of the Nigerian cases filed in United States courts, see Verlinden B.V. v. Central Bank of Nigeria, 488 F. Supp. 1284, 1290 n.22 (S.D.N.Y. 1980), aff'd, 647 F.2d 320 (2d Cir. 1981). 397. 28 U.S.C. § 1610(a)( 2 ) (1976), see House Report, supra note 2. at 28, reprinted in 1976 U.S. Code Cong. & Ad. News at 6627. claim is closely related to its use and, conversely, does not become more sensitive if the plaintiff's claim is unrelated to its use. The fortuitous presence in the forum of property connected to the plaintiff's claim is not a rational basis for distinguishing between otherwise similar judgments. The foregoing problems can be illustrated by applying section 1610(a)( 2 ) to a hypothetical. A foreign state might maintain and staff an office in the United States for the purposes of promoting trade with Americans, negotiating particular transactions, and soliciting capital investment. 3 8 The trade delegation, which does not constitute an agency or instrumentality, 3 9 might enter into a variety of contractual relations with private persons in the United States. It might be party to a lease for office space, employ American staff, borrow money, invest assets, and enter into contracts with American importers and exporters. In the event of a breach by the foreign state of one or more contracts, judgment creditors would seek to seize assets used in connection with the activities of the trade delegation. Applying the FSIA, one might conclude that all assets used or managed by the trade delegation are property of the foreign state, located in the United States, and used for commercial activity in the United States. That would not end the inquiry, however, for the crucial issue is whether that commercial activity is also the basis of the plaintiffs' respective claims. This issue raises substantial difficulties, for it hinges on a precise description of activities that can be correctly described in various ways. The activity of the trade delegation might be described broadly as "promoting trade with the United States." One would then argue that any of the plaintiffs' respective claims are related to the defendant's promotion of trade. The counter-argument, however, is that a commercial activity must be described more narrowly, or else virtually any claim could be based on it. In addition, the foreign state might have numerous other assets in the United States that are used in connection with the promotion of trade, none of which would be remotely related to the plaintiffs' claims. Defining activities more narrowly, however, raises new difficulties in dividing assets among the various activities. The activities at issue would be described as "leasing office space" and "procuring grain," but a court would be hard-pressed to allocate specific funds and assets 398. See Garcfa-Mora, supra note 3, at 350-54. See generally Fensterwald, supra note 62, at 634-39 (immunity accorded Soviet trade organizations in U.S. and other countries). 399. If the trade delegation was a separate agency or instrumentality, the connection between its property and plaintiff's claim would not be an issue, because its entire property would be subject to execution regardless of whether such a connection existed. See 28 U.S.C. § 1610(b)( 1 )-( 2 ) (1976). to them for purposes of execution. 400 Even if those determinations can be made by a court, they raise substantial accounting problems. 40 1 In addition, the trade delegation might commingle funds with its central government or other state organs, thus further complicating execution proceedings. The Act raises these questions through its circumscription of seizable assets, but provides no standards for answering them. More importantly, however, those difficult issues are raised unnecessarily, for they are not relevant from a policy perspective. Rules of immunity from execution should balance the state's interest in non-interference against the private interest in enforcement of judgments. Applied to the above hypothetical, such rules should focus on the extent to which seizure of governmental assets would threaten sensitive governmental concerns. In that inquiry, the basis of the plaintiff's claim is irrelevant. The foregoing analysis extends not only to claims based on commercial activities, but also to other claims. Since the legislators have judged that the seizure of commercial property located in the United States does not implicate and threaten important functions of the foreign state, execution should be permitted for any claim brought under sections 1605 through 1607.402 These problems primarily affect plaintiffs. The remedy suggested, a liberalizing of the commercial property exception, would go a long way toward promoting plaintiffs' interests more effectively. It offers greater flexibility in defining who may seize property and thus makes execution available to a wider range of plaintiffs. From a defendant's perspective, however, foreign states have very substantial interests in shielding their property from seizure. The liberalizing of the commercial property exception in favor of plaintiffs may require a countervailing protection in favor of foreign states. The most effective means of implementing such protection is in the form of a saving clause similar to the provision proposed for immunity from suit.4 03 The saving clause would permit, or require, a court to deny 400. For example, should a lessor be able to seize only assets specifically used for the lease that is the basis of his claim or could he attach assets used in connection with other office space or for overhead? Would a seller of grain be able to execute only upon assets earmarked for his grain supply contract or could he rely on assets used for general grain purchases or other purchases? 401. judicialAdoption, supra note 46, at 326 n.56. 402. Prior to the FSIA, one commentator argued that "property utilized in the performance of activities which are not necessary to the exercise of an essential governmental function should be subject to execution in satisfaction of judgments." Id. at 326. A similar critique of the execution provisions is offered in von Mehren, supra note 4, at 61-65. Von Mehren also notes the problem of relating plaintiff's claim to the activity for which the property is used. Id. at 63. 403. Lauterpacht, supra note 3, also proposes that if immunity from execution is abolished in principle, the foreign state should be able to apply for a stay of execution under certain conditions. Id. at 243; see supra notes 251-55 and aecompanying text. execution upon otherwise vulnerable property-that is commercial property-when the defendant state shows that execution would defeat an important governmental interest. Naturally, any seizure of property, commercial or otherwise, will cause some disruption in the smooth operation of government, or the implementation of economic policy. 40 4 Special statutory protection should thus be limited to substantial disruptions affecting vital public functions. A developing country, for example, should be able to prevent the seizure of commercial assets earmarked for grain purchases if it shows that its population is suffering from a hunger epidemic and that sufficient grain cannot be obtained without those funds. The inclusion of a sufficiently high standard in the saving clause would ensure that foreign states cannot defeat execution by showing the existence of frivolous concerns or insubstantial interests. The proposed revisions would better accommodate the conflicting interests of plaintiffs and foreign state defendants. The revisions would also have incidental benefits. First, foreign states would be less likely to remove commercial assets from the forum if they could protect sensitive or vital property by a showing of a substantial governmental interest. Second, the liberalization of the commercial property exception avoids the complex and unworkable distinction between property related to the plaintiff's claim and property unrelated to that claim, thus eliminating a potentially major litigation problem. One section of the Act achieves a balance of interests and a division of responsibility between the judiciary and the legislature that is noteworthy for its instructive character. Section 1610(c) states that no attachment or execution shall be permitted unless a court has first determined that a reasonable period of time has elapsed following the entry of judgment. 40 5 In addition, any order of attachment or execution must be made by a court rather than a clerk or local sheriff, as is permitted in some states. 406 The House Report describes some of the factors that a court should consider in determining whether the period elapsed has been reasonable. Those factors include the existence of required procedures before the foreign state can make payment, representations as to steps being taken to make payment, and evidence that the foreign state is about to remove assets from the jurisdiction to frustrate satisfaction of the judgment. 40 7 Section 1610(c) is intended to have courts exercise their discretion in permitting execution. 404. See supra pt. 1I(D)( 2 ). 405. 28 U.S.C. § 1610(c) (1976); House Report, supra note 2, at 30, reprinted in 1976 U.S. Code Cong. & Ad. News at 6629. 406. House Report, supra note 2, at 30, reprintedin 1976 U.S. Code Cong. & Ad. News at 6629. 407. Id. The policy underlying section 1610(c) is sound. It seeks to give plaintiffs reasonable assurance that execution will be available, while recognizing possible difficulties faced by states in liquidating funds for satisfaction of a judgment. Accordingly, the statute requires courts to balance various factors in determining whether a foreign state has had a reasonable time period available to satisfy a judgment. Moreover, if indications of bad faith on the part of the foreign state exist, the plaintiffs interest in preventing removal of assets also becomes a factor. Section 1610(c) is significant because it is the only instance in which the Act expressly gives the courts discretion to balance a number of factors operating variously in plaintiff's or defendant's favor. This indicates that the drafters were willing to delegate policy decisions to the courts in at least one sensitive area of sovereign immunity, and suggests that other problems of sovereign immunity law could also be solved by outlining certain policy factors and instructing courts to use their discretion in reaching a "reasonable" result based on those factors. 408 Additionally, section 1610(c) implies that some immunity issues cannot be resolved by fixed statutory rules but rather need to be addressed in an ad hoc fashion by courts, guided by legislative policy input. The legislators concluded that foreign states should have some grace period before execution to overcome special obstacles the), might face in satisfying a judgment. A statutorily fixed time, however, is no solution because it might be too short for liquidating funds to satisfy very large judgments, yet could be long enough to enable foreign states to remove assets from the jurisdiction. The best way to resolve that dilemma is to specify an indefinite period to be set by a court on the basis of various factors. 40 1 Other problems of sovereign immunity, for which statutorily predetermined results are unjust or impractical, may also be appropriate for that kind of solution. 410 Finally, section 1610(c) will give courts an opportunity to demonstrate their capacity to weigh a number of policy factors and apply open-ended standards in reaching sound and consistent decisions. If the FSIA is amended in the future, the courts' capacity to meet the challenge will constitute an argument in favor of solving other problems by judicial discretion. 408. The clause "reasonable period" appears in the statute at § 1610(c). 409. See Comment, Sovereign Immunity-lWaiver and Execution: Arguments from ContinentalJurisprudence,74 Yale L.J. 887 (1965), which states that in Italy and Greece courts cannot order execution without prior approval of the executive branch. Id. at 914-15. That requirement may be in part intended to solve the same problem addressed in § 1610(c). 410. See supranotes 251-55, 403-06 and accompanying text; see also Weber, supra note 4, at 39 (Congress should give courts a high degree of flexibility in the sovereign immunity area). CONCLUSION The criticisms of the FSIA that are made in this Article should not obscure the Act's significance. The prior law of sovereign immunity in the United States was unsound and unpredictable. The statute represents important policy advances and achieves a measure of certainty in litigation against foreign states. Nevertheless, the FSIA requires improvement in some areas. The jurisdictional scheme, for example, should be substantially revised. The role of the executive branch should be refined. On a number of issues, the judiciary should be given more discretion, subject to policy guidelines. Granting the courts wider latitude would enhance their ability to make discriminating policy judgments. Although the FSIA accounts for operative policies and competing interests better than prior law, many of its provisions could be tuned still more finely to resolve the delicate problems arising from legal action against foreign countries. Moreover, the international law of sovereign immunity is likely to continue developing in response to political and economic changes in international relations. Those developments will heighten the need for judicial latitude and a sensitive balancing of interests, lest United States law again lag behind that of other countries. This Article seeks to develop an approach to sovereign immunity which will satisfy that need. It focuses on competing interests and policies rather than on fixed rights and precepts. The underlying premise is that foreign state immunity is not inherent in the international order or the concept of the nation-state, but instead is a function of the ever changing and growing intercourse across national boundaries between persons and states. The four problems of sovereign immunity law addressed in the foregoing pages are not exhaustive of the troubled areas. Although an attempt was made to identify the most important issues, a complete treatment would cover many others. These include the status of agencies and instrumentalities, the sources and effects of waivers of different immunities, the relation between sovereign immunity and the Act of State doctrine, 411 the interaction of federal and state law, and conflict of laws questions. In addition, comparative studies should be made of the laws of other countries regarding various elements of sovereign immunity, including especially the success of the British State Immunities Act of 1978.412 Any study of those topics, however, should begin with an understanding of the policies and concepts fundamental to foreign state immunity. 411. See Hill, Sovereign Immunity and the Act of State Doctrine-Theory and Policy in American Law, to be published in January 1982 in 46 Rabels Zeitschrlft ffir auslindisches und internationales Privatrecht (Max Planck Institute, Hamburg, Germany 1982). 412. The State Immunity Act, 1978, ch. 33; see Note, Reciprocal Influence of Britishand United States Law: ForeignSovereign Immunity Law from the Schooner Exchange to the State Immunity Act of 1978, 13 Vand. J. Transnat'l L. 761 (1980). INTRODUCTION .................................. 156 I. THE CONCEPT OF SOVEREIGN IMMUNITY . ............. 158 A. The Roots of Sovereign Immunity .............. 158 1. Sovereign Immunity in Municipal Law ....... 158 2. Sovereign Immunity in International Law ..... 162 3. Comparison of Immunity in Municipal and International Law ..................... 166 B. The Absolute Doctrineand the Restrictive Doctrine 168 1. Major Differences .......................... 168 2. Underlying Policies ........................ 169 II. MAJOR PROBLEMS IN THE LAW OF SOVEREIGN IMMUNITY 173 A. Dominanceof the Executive Branch ............ 173 B. DistinctionBetween Public and PrivateActs ...... 179 C. Jurisdiction.................................. 183 1. The Conceptual Framework ................ 183 2. The Courts' Practice ....................... 184 3. Underlying Policies ........................ 188 D. Enforcement of Judgments .................... 189 1. The Courts' Practice ....................... 189 2. Underlying Policies ........................ 193 III. THE FOREIGN SOVEREIGN IMMUNITIES Acr OF 1976 ..... 195 A . Elimination of State DepartmentDominance ..... 197 1. The Statutory Solution ..................... 197 2. New Problems ............................ 198 3. Suggested Remedies ........................ 202 B. The Restrictive Doctrine ....................... 204 1. The Statutory Scheme ...................... 204 2. The OPEC Case ........................... 206 3. Suggested Remedies ........................ 210 * Member , State Bar of California; A.B.; 1974 , Dartmouth College; J.D. , 1977 , New York University; LL.M., 1980 , Columbia University. This paper was submitted in partial fulfillment of the requirements for the degree of Doctor of the Science of Law in the Faculty of Law , Columbia University. The author researched and wrote the article while he was a Jervey Fellow at Columbia Law School during the academic year 1979-1980 and a visiting scholar at the Max Planck Institute for Foreign & International Private Law, Hamburg, West Germany, during the academic year 1980-1981. 5. Suggested Remedies ........................ D. Enforcement of Judgments .................... 1. The Statutory Scheme ...................... 2. Prejudgment Attachments .................. 3. Execution ................................ 24. See Chisholm v. Georgia , 2 U.S. ( 2 Dall.) 419 , 450 - 53 , 466 - 69 , 469 - 79 ( 1793 ) (separate opinions of Iredell , J., Cushing , J. , Jay , C.J.): Engdahl, supra note 7, at 7 n.26. 25. See Chisholm v. Georgia , 2 U.S. ( 2 Dall.) 419 , 477 - 78 ( 1793 ) (Jay, C.J.); Engdahl, supra note 7, at 11-12. 26. See J. Story , Commentaries on the Constitution of the United States § 1675 (4th ed. Boston 1873 ) (1st ed. Boston 1833 ); Engdahl, supra note 7, at 13. 27. United States v. Lee , 106 U.S. 196 ( 1882 ); Osborn v . United States Bank , 22 U.S. ( 9 Wheat.) 737 ( 1824 ); Fowler v . Lindsay , 3 U.S. ( 3 Dall.) 411 ( 1799 ): Engdahl, supra note 7, at 14-21. 28. Nichols v. United States , 74 U.S. ( 7 Wall.) 122 , 126 ( 186S ). 29. The Siren, 74 U.S. ( 7 Wall.) 152 , 154 ( 1868 ). 30. The historical English basis of sovereign immunity was completely rejected in Langford v . United States , 101 U.S. 341 , 343 ( 1879 ). See Pugh, supra note 16 , at 480. 31. For a brief analysis of some of the modern rationales underlying sovereign immunity in tort law, see Comment, An Analysis of the Theories Advanced for the Continuation of Municipal Tort Immunity, 2 Cum .- Sam . L. Rev. 437 ( 1971 ). See generally Symposium , Sovereign Immunity and Public ,Responsibility, 1966 U. Ill . L.F. 793 . 32. 11 U.S. (7 Cranch) 116 ( 1812 ). 33. Id . at 136. 34. E.g., Nevada v . Hall, 440 U.S. 410 , 416 ( 1979 ) ; First Nat'l City Bank v . Banco Nacional de Cuba, 406 U.S. 759 , 762 ( 1972 ) ; National City Bank v . Republic 38. Id . at 137-39. 39. Id . at 139 , 143 . 40. Id . at 137. 41. See Nevada v. Hall, 440 U.S. 410 , 416 - 18 ( 1979 ). In this case the Court held, in an interstate context, that California was free to withdraw the immunity that it had in the past extended to Nevada as a matter of comity . Id. at 418 . The Court emphasized the sovereignty of each state as the basis of its freedom to extend or deny immunity to another state . Id. at 425-27; cf. First Nat'l City Bank v . Banco Nacional de Cuba, 406 U.S. 759 , 762 ( 1972 ) (presumption of sovereign immunity granted to foreign sovereigns absent explicit declaration to the contrary); Comment, The American Doctrine of Sovereign Immunity: An HistoricalAnalysis, 13 Vill. L. Rev . 583 , 584 - 87 ( 1968 ) (same) [hereinafter cited as The American Doctrine] . 42. See Nevada v. Hall, 440 U.S. 410 , 416 ( 1979 ); Lauterpacht, supra note 3, at 239, 269; von Mehren, supra note 4 , at 35-36. 43. See Rich v. Naviera Vacuba S.A. , 295 F.2d 24 ( 4th Cir . 1961 ) (per curiam) . In Naviera Vacuba , the State Department issued a suggestion of immunity In a 54. See Alfred Dunhill , Inc. v. Cuba, 425 U.S. 682 , 698 - 705 ( 1976 ); Judicial Adoption, supranote 46 , at 316- 20 . See generally von Mehren, supra note 4 , at 37-43 ( references to the laws of other countries regarding sovereign immunity); Weber, supra note 4 , at 18-19 (same). 55. The importance of the distinction is not merely theoretical, however, for socialist countries still adhere to the absolute rule . See Erickson , Soviet Theory of the Legal Natureof CustomaryInternationalLaw , 7 Case W. Res . J. Int'l L . 148 ( 1975 ). See generally M. Boguslavskij , Staatliche Immunit t ( 1965 ) (one of the major works on the socialist version of sovereign immunity). 56. See Lauterpacht, supra note 3 , at 220-25. 57. See Pugh & McLaughlin, supra note 3; see aLso Restatement (Second) of Foreign Relations Law of the United States § 69 ( 1965 ). 58. CompareRoumania v. Guaranty Trust Co., 250 F. 341 ( 2d Cir .) ("purpose" test used to grant immunity for purchase of army boots), cert . denied, 246 U.S. 663 ( 1918 ) with Judgment of Mar . 13 , 1926 , Corte cass., Italy , 1926 Foro It. I 584 , 1925 -1926 Ann. Dig. 179 (No. 128) ("nature" test used to deny immunity on same purchase contract). 59. See Victory Transp., Inc. v. Comisaria General de Abastecimientos y Transportes, 336 F.2d 354 ( 2d Cir . 1964 ), cert. denied, 381 U.S. 934 ( 1965 ); Goodman, supra note 3; JudicialAdoption, supra note 46; infra notes 112-122 and accompanying text. 60. Weiss , Compitence ou Incompdtence des Tribunaux 6 l'egard des otats Etrangers, 1923 Hague Academy Int 'l L. receuil des Cours 525 , 546 ( 1923 ) : see Lauterpacht, supra note 3 , at 225. 61. See Garcfa-Mora, supranote 3, at 339-54; see also Lauterpacht, supra note 3 , at 222-30 ( good comparison of the absolute and the restrictive doctrine); Jurisdictional Immunity , supra note 3 , at 1160-63 (same). 62. See Fensterwald , Sovereign Immunity and Soviet State Trading , 63 Harv. L. Rev. 614 , 615 - 24 ( 1950 ); Lauterpacht, supra note 3, at 222-25. 72. See , e.g., Lowenfeld II , supra note 3 , at 927- 28 . Professor Lowenfeld had been with the State Department from 1961 to 1966, holding the position of Deputy Legal Adviser from 1964 to 1966 . He was heavily involved in sovereign immunity cases and prepared a study identifying the defects in the American approach and suggesting a new approach . Id. at 901. Five years later, Professor Lowenfeld again became involved in a sovereign immunity case, that time as counsel to the defending foreign state. In an article based on that experience, he noted many of the same defects in American law . Lowenfeld I, supra note 3 , at 423-36. 73. See Ex Parte Muir, 254 U.S. 522 , 533 ( 1921 ), and cases cited therein. On the issue of executive dominance in foreign relations , see Banco Nacional de Cuba v. Sabbatino , 376 U.S. 398 , 427 - 37 ( 1964 ), and Oetjen v. Central Leather Co., 246 U.S. 297 , 302 - 03 ( 1918 ). 74. 11 U.S. (7 Cranch) 116 ( 1812 ). 75. Id . at 146-47. 314. Von Mehren , supra note 4 , at 46-48. 315. See House Report, supra note 2 , at 26-27, reprintedin 1976 U.S. Code Cong. & Ad . News at 6625-26. 316. See Rabinowitz , Immunity of State-Owned Ships and Barratry , 1962 J. Bus . L. 89 ( 1962 ); JurisdictionalImmunity, supra note 3, at 1150- 52 . For a more extensive survey covering other countries, see Brandon, Sovereign Immunity of GovernmentOwned Corporationsand Ships , 39 Cornell L.Q. 425 ( 1954 ). 317. See Smit I , supra note 159, at 54- 56 . But see von Mehren, supra note 4 , at 47-48 (criticism of maritime liens in form of in personam claims). 318. Smit I , supra note 159, at 54-56, 67 . 319. Id . at 69; see Carrington, The Modern Utility of Quasi In Rein Jurisdiction , 76 Harv. L. Rev. 303 ( 1962 ) ; Smit, The Enduring Utility of In Rein Rules: A Lasting Legacy of Pennoyer v . Neff , 43 Brooklyn L. Rev . 600 ( 1977 ) [hereinafter cited as Smit II] . 327. See Smit I , supra note 159, at 65- 67 . Professor Smit argues for retention of in rem actions against foreign states in federal court . Id . It should be noted that the FSIA approach to prejudgment attachments should be reevaluated in the event that in rem actions are again permitted. Although Congress may not wish to return to the pre-FSIA era of liberal attachment, it may wish to permit the institution of In rem proceedings through some attachment procedure specially designed to account for foreign states' interests. After all, the most basic function of prejudgment attachments has traditionally been the commencement of an in rem proceeding . Compare Amoco Overseas Oil Co . v. Compagnie Nationale Algerienne de Navigation, 459 F. Supp . 1242 (S.D.N .Y. 1978 ) (quasi in rem action commenced just prior to Act's effective date ), afJ'd, 605 F.2d 648 ( 2d Cir . 1979 ) and National Am . Corp. v. Nigeria, 448 F. Supp . 622 (S.D.N .Y. 1978 ) (same ), af'd, 597 F.2d 314 ( 2d Cir . 1979 ) with Jet Line Servs . v. M/V Marsa El Hariga, 462 F. Supp . 1165 ( D. Md . 1978 ) (vacated attachment of property owned by foreign government's agent) . 328. 28 U.S.C. § 1330 (b) ( 1976 ); House Report, supra note 2 , at 13-14, reprinted in 1976 U.S. Code Cong. & Ad . News at 6611-12. 329. 326 U.S. 310 ( 1945 ). 330. 355 U.S. 220 ( 1957 ). 331. House Report, supra note 2 , at 13, reprintedin 1976 U.S. Code Cong. & Ad . News at 6612. 332. 28 U.S.C. §§ 1605 - 1607 ( 1976 ). 333. Id . For discussions of these provisions and cases decided thereunder, see Carl, supranote 4 , at 1015-21; Kahale & Vega, supra note 4, at 244-52; see generally Note, The Foreign Sovereign Immunities Act of 1976: Direct Effects and Minim urn Contacts , 14 Cornell Int'l L . J. 97 ( 1981 ) ; Note, Direct Effect Jurisdiction Under the ForeignSovereign Immunities Act of 1976 , 13 N.Y.U. J. Int'l L . & Pol . 571 ( 1981 ). 334. House Report, supra note 2 , at 17-23, reprintedin 1976 U.S. Code Cong. & Ad . News at 6615-22. 335. Id . at 13, reprinted in 1976 U.S. Code Cong. & Ad . News at 6612. 336. Id . 337. Id . But see id . at 17-19, reprintedin 1976 U.S. Code Cong. & Ad . News at 6615-18 ( discussion concerning the jurisdictional nexus between a foreign state's commercial activities and the United States) . 338. Id . at 16-17, reprintedin 1976 U.S. Code Cong. & Ad . News at 6614-16. 353. 28 U.S.C. § 1608 ( 1976 ); see House Report, supra note 2 , at 23-26, reprinted in 1976 U.S. Code Cong. & Ad . News at 6622-25. 354. 22 C.F.R. §§ 93 . 1 -.2 ( 1980 ) : see also U.S. Dep't State, Memorandum on Judicial Assistance under the Foreign Sovereign Immunities Act and Service of Process upon a Foreign State (May 10, 1979 ), reprintedin 18 Int'l Legal Mar'Is 1177 ( 1979 ) (regarding State Department responsibility to serve process on foreign government defendants under the FSIA); Letter from Lee R . Marks, Deputy Legal Adviser of State Dep't, to Charles N. Brower (June 15, 1979 ), reprinted in 18 Int'l Legal Mat'ls 1184 ( 1979 ) (regarding transmittal of foreign states' diplomatic notes to United States courts ). 355. 28 U.S.C. § 1608 (b) ( 1976 ). 356. Id . § 1608 ( b)(3)(C). 357. Id . § 1608 (d). 358. Id . § 1608 (e). The claimant must establish his claim or right to relief "by evidence satisfactory to the court." Id. 359. House Report , supranote 2, at 23, reprintedin 1976 U.S. Code Cong. & Ad . News at 6622. 360. Id . at 23 , 27, reprintedin 1976 U.S. Code Cong. & Ad . News at 6622 , 6626; see suprapt. II (C)(2). 361. House Report, supra note 2, at 8 , 26 - 27 , reprinted in 1976 U.S. Code Cong. & Ad . News at 6606 , 6624 - 26 . The use of the in rem procedure to start a suit provided the jurisdictional contact required as a matter of due process, because attachment is based on the presence of property within the forum . 362. House Report, supra note 2 , at 26, reprintedin 1976 U.S. Code Cong. & Ad . News at 6625. 363. Smit I , supra note 159, at 66. 364. Fed . R. Civ . P. 4(i) is discussed in 4 C. Wright & A . Miller , Federal Practice and Procedure: Civil §§ 1133 - 1136 ( 1969 & Supp . 1980 ). See generally Miller, supra note 163 , at 121-39 (extensive treatment of this rule). 365. See Gray v. Permanent Mission of the Congo to the U .N., 443 F. Supp . 816 , 820 -21 (S.D.N .Y.), af'd mem., 580 F.2d 1044 ( 2d Cir . 1978 ). 366. The House Report reflects the drafters' awareness of those special interests in the statement that "section 1608 follows on the precedents of other statutory service provisions in areas of unusual Federal interest . " House Report, supra note 2 , at 23-24, reprinted in 1976 U.S. Code Cong. & Ad . News at 6622. 367. See Carl, supra note 4 , at 1022-28.

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Thomas H. Hill. A Policy Analysis of the American Law of Foreign State Immunity, Fordham Law Review, 1981,