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Hastings International and Comparative Law Review

Authors

Danny A. Hoek

Abstract

In any federal judicial proceeding in the United States involving a foreign government or an entity controlled by a foreign government, it is vital to first determine whether that government or entity will be afforded immunity from prosecution under the doctrine of sovereign immunity. If the government or entity qualifies for immunity, they must waive their immunity for the court to have jurisdiction over them.

Prior to 1976, there was considerable turmoil within the United States government over how to distinguish those entities that qualified for immunity from those that did not. Congress responded to this turmoil with the passage of the Foreign Sovereign Immunities Act of 1976. This Act purported to be the final word on this subject and has since been universally applied by federal courts. Unfortunately, a lack of clear definitions for certain key terms has resulted in a wide variety of interpretations and inconsistent results.

This Note examines the most recent interpretation of the Foreign Sovereign Immunities Act by the United States Supreme Court. In many ways, Saudi Arabia v. Nelson represents a significant departure by the Supreme Court from its prior rulings on foreign sovereign immunity. This Note attempts to spotlight those departures and provide insights into why the Court ruled the way it did.

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