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U.S. Supreme Court Sets High Standard for Expropriation Exception to Sovereign Immunity
24 May 2017
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In the United States, parties seeking to assert jurisdiction over foreign states under the expropriation exception of the Foreign Sovereign Immunities Act (the “FSIA”) must now demonstrate that the facts of the case actually—not arguably—show a taking of property in violation of international law.
In practical terms, courts will likely now require parties not only to plead but also to prove at an early stage of the case that the foreign state expropriated the relevant property in violation of international law, and thus this allegation and any related defenses will likely be argued and decided as a jurisdictional issue.
Parties seeking to enforce expropriation-based arbitral awards against foreign states in the United States are unlikely to be affected, since they will most likely be able to satisfy another exception to jurisdictional immunity under the FSIA.
Arbitration & International Disputes
Public International Law
Donald Francis Donovan
Mark W. Friedman
Ina C. Popova
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