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Tuesday, August 31, 2010

Samantar v. Yousef: The Foreign Sovereign Immunities Act and Foreign Officials

Jennifer K. Elsea
Legislative Attorney

Jordan E. Segall
Research Assistant

On June 1, 2010, the U.S. Supreme Court decided unanimously in Samantar v. Yousef that the Foreign Sovereign Immunities Act (FSIA), which governs the immunity of foreign states in U.S. courts, does not apply in suits against foreign officials. The ruling clarifies that officials of foreign governments, whether present or former, are not entitled to invoke the FSIA as a shield, unless the foreign state is the real party in interest in the case. Samantar's particular facts involve the Alien Tort Statute (ATS) and the Tort Victims Protection Act (TVPA), but the ruling applies to all causes of action against foreign officials. The ruling leaves open the possibility that foreign officials have recourse to other sources of immunity or other defenses to jurisdiction or the merits of a lawsuit, such as foreign sovereign immunity under the common law, perhaps aided by State Department suggestions of immunity. The Court also left open the possibility that Congress could enact new provisions to address the immunity of foreign officials. 

Prior to the Samantar decision, most federal judicial circuits interpreted the FSIA to cover foreign officials as "agencies or instrumentalities" of the foreign state based on their interpretation that Congress had intended to fully codify the common law of foreign sovereign immunity. To the extent the FSIA exceptions codify sovereign immunity of states under the common law, as in the case of lawsuits based on commercial activity under the restrictive theory, the recognition of a separate theory of immunity for foreign officials may not yield results significantly different from those cases in which courts applied the FSIA. The same common law considerations some courts previously applied to determine whether a foreign official is an "agency or instrumentality" under the FSIA would likely lead to similar results where the common law is applied directly. However, where Congress enacts exceptions to the FSIA that depart from the common law, outcomes may vary from cases decided under the pre-Samantar approach. 

This report provides an overview of the FSIA, followed by a consideration of the remaining options for foreign officials who seek immunity from lawsuits, as well as some of the questions that may emerge from each option. The report also addresses legislation that would affect the immunity of foreign officials, including S. 2930.

Date of Report: August 24, 2010
Number of Pages: 20
Order Number: R41379
Price: $29.95

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