2nd Circ. Rulings Clarify FSIA's Commercial Activity Exception

Law360 (June 17, 2020, 3:23 PM EDT) -- Whether foreign states are immune from U.S. court jurisdiction often turns on the commercial activity exception to the Foreign Sovereign Immunities Act, or FSIA.

The commercial activity exception "lies at the heart of the restrictive theory of immunity, and not surprisingly, it is the most litigated exception," according to David Stewart's "The Foreign Sovereign Immunities Act: A Guide for Judges."[1] This type of litigation has covered high-stakes disputes from sovereign debt litigation[2] to liability for terrorist attacks[3] and, yes, COVID-19.[4] Foreign sovereigns have rarely settled such cases without first seeking dismissal under the FSIA.

Yet, despite commercial activity being — as...

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