Foreign Sovereign Immunities Act

The Democratic National Committee (DNC) has filed suit against Russia, among other actors, for hacking and leaking DNC communications in an effort to influence the 2016 election. Are Russia and its officials entitled to foreign sovereign immunity?

On Wednesday, the Supreme Court ruled 8-0 in Rubin v. Islamic Republic of Iran that Section 1610(g) of the Foreign Sovereign Immunities Act (FSIA) does not provide a freestanding basis for allowing parties that hold terrorism-related judgments under Section 1605(a) of the FSIA to attach and execute the property of foreign states that would otherwise be subject to sovereign immunity protections.

President Trump’s foreign business dealings and his own exposure to suit in foreign courts, Russian meddling in U.S. elections and cybersecurity more broadly, as well as the President’s thin-skinned, personal style of politics all illustrate the dangers of allowing the executive branch to make foreign official immunity determinations binding on the courts.

A little-noticed bill to amend the Foreign Sovereign Immunities Act (“FSIA”) passed both houses of Congress in December and was signed into law by President Obama on Dec. 16, 2016.   The bill (“ The Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (FCEJCA)” or “Art Museum Amendment”) narrows the expropriation exception in the FSIA to provide greater immunity for foreign states which send works of art to the United States for temporary exhibit.  Unfortunately, the FCEJA may ultimately be more harmful than helpful to foreign states.