Foreign Sovereign Immunities Act: Exceptions, Filing, and Collecting

The Foreign Sovereign Immunities Act is the only route to suing a foreign government in a United States court, and it starts from a presumption that no such lawsuit is allowed. Enacted in 1976 and codified at 28 U.S.C. §§ 1602–1611, the statute makes foreign nations immune from suit here unless the dispute fits one of the specific exceptions Congress wrote into the law.¹ Before the statute existed, the State Department decided immunity questions case by case. The FSIA moved that decision to the courts and gave them a fixed set of rules to apply.² If you are thinking about a claim against a foreign nation, its agency, or a state-owned company, three questions decide whether you have a case: does the defendant qualify as a foreign state, does the conduct fit an exception, and can you follow the strict procedural rules that come next.

Who Counts as a Foreign State

The statute’s protections reach further than the national government itself. Under 28 U.S.C. § 1603, a “foreign state” includes the country’s government, its political subdivisions such as provinces or municipalities, and any agency or instrumentality that operates on the government’s behalf.³ That third category covers national airlines, state oil companies, sovereign wealth funds, and similar entities.

An entity qualifies as an instrumentality if it has a separate legal identity, if a majority of its ownership belongs to the foreign state or a political subdivision, and if it is neither a U.S. citizen nor created under the laws of a third country.³ Courts test these requirements as of the date the lawsuit is filed.

Ownership has to be direct. In Dole Food Co. v. Patrickson, the Supreme Court held that indirect ownership through a parent company does not count. A government that owns 100% of Company A, which owns 100% of Company B, does not own Company B for FSIA purposes.⁴ Control alone is not enough. If you are suing a subsidiary of a state-owned enterprise, check the corporate chart before you check anything else.

The Default Rule Is Immunity

Section 1604 sets the baseline: no U.S. court, federal or state, has jurisdiction over a foreign sovereign unless a statutory exception applies.¹ Every FSIA case begins with that presumption in the defendant’s favor.

Getting past it works in three steps. The defendant first shows it qualifies as a foreign state under § 1603, usually with documentation of its governmental nature. Once that is established, the plaintiff has to produce evidence that a statutory exception applies. Even then, the defendant carries the ultimate burden of persuading the court, by a preponderance of the evidence, that the exception does not actually fit.⁵ Miss your step and the case is dismissed.

The Exceptions That Let You Sue

Sections 1605, 1605A, and 1605B contain every path around immunity. If your claim does not fit one of them, there is no lawsuit.

Commercial Activity

The most common exception. Under § 1605(a)(2), immunity falls away when a claim is based on commercial activity carried on in the United States, on an act performed here in connection with commercial activity abroad, or on an act taken outside the country in connection with foreign commercial activity that causes a direct effect inside the United States.⁶ The question is whether the government was acting as a private market participant or exercising a uniquely governmental function. A state-owned company breaching a supply contract with an American business looks commercial. A government revoking an export license does not.

Waiver

A foreign state can give up its immunity. Section 1605(a)(1) removes it when the state has waived immunity explicitly or by implication.⁶ Explicit waivers appear in treaty text and in dispute resolution clauses of commercial contracts. Implied waivers come up when a foreign state litigates in a U.S. court without raising immunity in time. Once made, a waiver generally cannot be pulled back unilaterally.

Non-Commercial Torts

Section 1605(a)(5) opens the door when a foreign government’s employees cause personal injury, death, or property damage in the United States, even if the conduct had nothing to do with commercial activity.⁶ Think of an embassy vehicle hitting a pedestrian in Washington, D.C. Both the harmful act and the injury must happen on American soil.

Two limits matter. Discretionary policy-level decisions are excluded, and Congress carved out several intentional torts: malicious prosecution, abuse of process, defamation, fraud, and interference with contract are all outside this exception.⁶

Expropriation of Property

Section 1605(a)(3) applies when a lawsuit involves property taken in violation of international law, provided the property or something exchanged for it is present in the United States and connected to commercial activity here.⁶ It is most relevant when a foreign government has nationalized assets belonging to an American investor. The exception also reaches property owned or operated by an instrumentality that engages in commercial activity in the United States.

Arbitration

Foreign governments that agree to arbitrate cannot invoke immunity to escape enforcement. Section 1605(a)(6) strips immunity from suits to enforce an arbitration agreement or confirm an award if the arbitration occurs or is intended to occur in the United States, if the agreement or award is governed by a treaty providing for enforcement, or if the underlying claim could have been brought in a U.S. court under another FSIA exception.⁶

Real Estate and Inherited Property

Section 1605(a)(4) covers disputes over rights acquired through inheritance or gift and disputes over immovable property in the United States.⁶ A foreign state cannot use sovereignty to defeat a straightforward property claim over land or buildings on American soil.

State-Sponsored Terrorism

Section 1605A is a separate, broader exception for victims of terrorism carried out or supported by a foreign government. It covers personal injury or death caused by torture, extrajudicial killing, aircraft sabotage, hostage-taking, or material support for any of those acts, when the conduct was carried out by officials or agents acting in their official capacity.⁷

The exception applies only to countries designated by the State Department as state sponsors of terrorism at the time the act occurred, or later designated because of it. The claimant must have been a U.S. national, a member of the armed forces, or a U.S. government employee or contractor when the terrorist act took place.⁸ Claims must be brought within 10 years of the date the cause of action arose.⁹

Terrorism claims also unlock a broader damages package than the rest of the FSIA. Economic losses, solatium, pain and suffering, and punitive damages are all available.⁷

JASTA and International Terrorism

Congress added § 1605B through the Justice Against Sponsors of Terrorism Act in 2016. It creates a separate path for suing a foreign government over international terrorism on American soil and, unlike § 1605A, does not require the country to be on the State Department’s terrorism list. Immunity falls away when a foreign state’s wrongful acts, or those of its officials acting in their official capacity, contribute to an act of international terrorism causing physical injury, death, or property damage in the United States.¹⁰ Two limits: mere negligence does not qualify, and acts of war are excluded from the definition.

Where to File and How to Serve

Procedural rules under the FSIA are stricter than in ordinary federal litigation, and courts enforce them rigidly.

Venue

An FSIA suit can be filed in a federal district where a substantial part of the events occurred, where the property at issue is located, or where an agency or instrumentality is licensed to do business or is doing business. Any civil action against a foreign state or political subdivision can also be brought in the U.S. District Court for the District of Columbia, which functions as a catch-all when no other district fits.¹¹

Service of Process

Section 1608 creates a mandatory hierarchy for serving a foreign state or political subdivision. Skipping a step is grounds for dismissal. You must work through the sequence in order:¹²

Any special arrangement between the parties, such as a notice clause in a contract.
If none exists, service through an applicable international convention such as the Hague Service Convention.
If that fails, the clerk of court mails the complaint, summons, and notice of suit, all translated into the foreign state’s official language, by registered mail to the head of the foreign ministry.
If no signed receipt returns within 30 days, the clerk sends the papers to the Secretary of State, who transmits them through diplomatic channels.

Service on an agency or instrumentality follows a different hierarchy under § 1608(b), which allows service on an officer or authorized agent in the United States as the second option instead of going straight to an international convention. All documents in either track must be translated into the official language of the foreign state.

Response Deadline and Default

Once properly served, a foreign state has 60 days to file an answer or responsive pleading, double the standard 30-day window. If the foreign state does not respond, a default is possible, but the court cannot rubber-stamp it. The plaintiff must still establish the claim with evidence satisfactory to the court.¹²

Trial, Liability, and Damages

Two features distinguish FSIA cases from ordinary federal litigation. There is no right to a jury trial. Section 1330 grants district courts jurisdiction over these claims only as “nonjury civil actions,” so every case is decided by a judge.¹³ And the FSIA does not provide the substantive law itself. Under § 1606, a foreign state that has lost its immunity is liable “in the same manner and to the same extent as a private individual under like circumstances,” which in practice means state law usually controls the merits.¹⁴

Section 1606 also caps recovery. Punitive damages are not available against a foreign state itself, though they can be awarded against an agency or instrumentality.¹⁴ The exception is terrorism cases under § 1605A, where Congress specifically authorized punitive damages, solatium, and pain-and-suffering awards against the foreign state directly.⁷ For every other type of FSIA claim, recovery is limited to compensatory damages.

Collecting on the Judgment

Winning is often the easier part. Section 1609 gives foreign-state property in the United States a separate layer of immunity from seizure, attachment, and execution, even after judgment has been entered.¹⁵ You have to clear another set of exceptions before you can touch anything.

Section 1610 allows attachment of property that a foreign state uses for commercial activity in the United States when one of several conditions applies:

The foreign state waived immunity from execution, explicitly or by implication.
The property was used for the commercial activity on which the claim is based.
The judgment established rights in property taken in violation of international law.
The property is an insurance payout covering the conduct that led to the judgment.
The judgment confirms an arbitral award against the foreign state.
The judgment arises from a § 1605A terrorism claim, in which case the property need not be connected to the underlying act.

¹⁶

Even when § 1610 would allow attachment, § 1611 puts certain property fully off limits. Central bank funds held for the bank’s own account cannot be attached unless the bank or its parent government explicitly waived that protection. Military property under the control of a defense agency is fully immune. Diplomatic mission facilities used for official purposes cannot be reached.¹⁷ Many successful plaintiffs, especially terrorism victims with large judgments, spend years hunting for attachable assets because the foreign state’s holdings in the United States sit in categories Congress put beyond reach.

1
Office of the Law Revision Counsel. 28 USC 1604 – Immunity of a Foreign State From Jurisdiction
2
U.S. Department of State. Foreign Sovereign Immunities Act
3
Office of the Law Revision Counsel. 28 USC 1603 – Definitions
4
Legal Information Institute. Dole Food Co. v. Patrickson
5
GovInfo. The Foreign Sovereign Immunities Act – A Guide for Judges
6
Office of the Law Revision Counsel. 28 USC 1605 – General Exceptions to the Jurisdictional Immunity of a Foreign State
7
Office of the Law Revision Counsel. 28 USC 1605A – Terrorism Exception to the Jurisdictional Immunity of a Foreign State
8
Congress.gov. Foreign Sovereign Immunities Act – Rules and Exceptions
9
Office of the Law Revision Counsel. 28 USC 1605A – Terrorism Exception to the Jurisdictional Immunity of a Foreign State
10
Office of the Law Revision Counsel. 28 USC 1605B – Responsibility of Foreign States for International Terrorism Against the United States
11
Office of the Law Revision Counsel. 28 USC 1391 – Venue Generally
12
Office of the Law Revision Counsel. 28 USC 1608 – Service; Time to Answer; Default
13
Office of the Law Revision Counsel. 28 USC 1330 – Actions Against Foreign States
14
Office of the Law Revision Counsel. 28 USC 1606 – Extent of Liability
15
Office of the Law Revision Counsel. 28 USC 1609 – Immunity From Attachment and Execution of Property of a Foreign State
16
Office of the Law Revision Counsel. 28 USC 1610 – Exceptions to the Immunity From Attachment or Execution
17
Office of the Law Revision Counsel. 28 USC 1611 – Certain Types of Property Immune From Execution