Hastings International and Comparative Law Review


Stella Havkin


Sovereign immunity permits a government and its agents to claim immunity from prosecution in the courts of other nations. In 1976 the United States enacted the Foreign Service Immunities Act adopting a restrictive sovereign immunity policy. This Act included two exceptions under which a foreign sovereignty can be denied immunity: the commercial activity exception and the noncommercial tort exception. The Fifth Circuit Court of Appeals in De Sanchez v. Banco Central de Mexico recently announced new tests to determine the application of both exceptions. This Note analyzes the two exceptions and their past interpretation by the courts. It then discusses the effect of the De Sanchez decision on previous cases and as precedent for future decisions. The author concludes that amendments by Congress or clarifications by the courts are necessary to ease application of the exceptions and inform plaintiffs whether their claims are valid under either or both of the exceptions.