Foreign Sovereign Immunities Act - Scope and Applicability of The FSIA

Scope and Applicability of The FSIA

Retroactive Application. In 2004, the Supreme Court held in Republic of Austria v. Altmann, 541 U.S. 677 (2004) that the FSIA applies retroactively. That case involved a claim by the descendants of owners of famous paintings against the Austrian government for return of those paintings, which were allegedly seized during the Nazi era. As a consequence of Altmann, for lawsuits filed after the enactment of the FSIA (1976), FSIA standards of immunity and its exceptions apply, even where the conduct that took place prior to enactment of the FSIA. See Note, 79 Tul. L. Rev. 1113 (2005) (discussing history of FSIA).

Exclusive Basis for Suit. In Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428 (1989), the Supreme Court held that the Foreign Sovereign Immunities Act provides the "sole basis for obtaining jurisdiction over a foreign state." In that case, a Liberian-owned oil tanker which was traveling outside of the "war zones" designated by the English and Argentinians during the Falklands War in 1982 was struck by an air to surface rocket fired by an Argentine jet. The shipping company sued Argentina in federal court claiming that Argentina's actions violated the Alien Tort Statute 28 U.S.C. § 1350 and general admiralty law. Because the Court found that the FSIA provided the exclusive means of suing the foreign sovereign, the Court determined that the plaintiffs were not permitted to bring suit under the Alien Tort Statute or general admiralty law.