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United States Code (Last Updated: May 24, 2014) |
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Title 28. JUDICIARY AND JUDICIAL PROCEDURE |
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Part IV. JURISDICTION AND VENUE |
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Chapter 97. JURISDICTIONAL IMMUNITIES OF FOREIGN STATES |
§ 1605. General exceptions to the jurisdictional immunity of a foreign state
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(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case— (1) in which the foreign state has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of the waiver which the foreign state may purport to effect except in accordance with the terms of the waiver; (2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States; (3) in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state; or that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States; (4) in which rights in property in the United States acquired by succession or gift or rights in immovable property situated in the United States are in issue; (5) not otherwise encompassed in paragraph (2) above, in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment; except this paragraph shall not apply to— (A) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused, or (B) any claim arising out of malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights; or (6) in which the action is brought, either to enforce an agreement made by the foreign state with or for the benefit of a private party to submit to arbitration all or any differences which have arisen or which may arise between the parties with respect to a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration under the laws of the United States, or to confirm an award made pursuant to such an agreement to arbitrate, if (A) the arbitration takes place or is intended to take place in the United States, (B) the agreement or award is or may be governed by a treaty or other international agreement in force for the United States calling for the recognition and enforcement of arbitral awards, (C) the underlying claim, save for the agreement to arbitrate, could have been brought in a United States court under this section or section 1607, or (D) paragraph (1) of this subsection is otherwise applicable. (b) A foreign state shall not be immune from the jurisdiction of the courts of the United States in any case in which a suit in admiralty is brought to enforce a maritime lien against a vessel or cargo of the foreign state, which maritime lien is based upon a commercial activity of the foreign state: Provided, That— (1) notice of the suit is given by delivery of a copy of the summons and of the complaint to the person, or his agent, having possession of the vessel or cargo against which the maritime lien is asserted; and if the vessel or cargo is arrested pursuant to process obtained on behalf of the party bringing the suit, the service of process of arrest shall be deemed to constitute valid delivery of such notice, but the party bringing the suit shall be liable for any damages sustained by the foreign state as a result of the arrest if the party bringing the suit had actual or constructive knowledge that the vessel or cargo of a foreign state was involved; and (2) notice to the foreign state of the commencement of suit as provided in section 1608 of this title is initiated within ten days either of the delivery of notice as provided in paragraph (1) of this subsection or, in the case of a party who was unaware that the vessel or cargo of a foreign state was involved, of the date such party determined the existence of the foreign state’s interest. (c) Whenever notice is delivered under subsection (b)(1), the suit to enforce a maritime lien shall thereafter proceed and shall be heard and determined according to the principles of law and rules of practice of suits in rem whenever it appears that, had the vessel been privately owned and possessed, a suit in rem might have been maintained. A decree against the foreign state may include costs of the suit and, if the decree is for a money judgment, interest as ordered by the court, except that the court may not award judgment against the foreign state in an amount greater than the value of the vessel or cargo upon which the maritime lien arose. Such value shall be determined as of the time notice is served under subsection (b)(1). Decrees shall be subject to appeal and revision as provided in other cases of admiralty and maritime jurisdiction. Nothing shall preclude the plaintiff in any proper case from seeking relief in personam in the same action brought to enforce a maritime lien as provided in this section. (d) A foreign state shall not be immune from the jurisdiction of the courts of the United States in any action brought to foreclose a preferred mortgage, as defined in section 31301 of title 46. Such action shall be brought, heard, and determined in accordance with the provisions of chapter 313 of title 46 and in accordance with the principles of law and rules of practice of suits in rem, whenever it appears that had the vessel been privately owned and possessed a suit in rem might have been maintained. [(e) , (f) Repealed. Pub. L. 110–181, div. A, title X, § 1083(b)(1)(B), Jan. 28, 2008 , 122 Stat. 341.](g) Limitation on Discovery.— (1) In general.— (A) Subject to paragraph (2), if an action is filed that would otherwise be barred by section 1604, but for section 1605A, the court, upon request of the Attorney General, shall stay any request, demand, or order for discovery on the United States that the Attorney General certifies would significantly interfere with a criminal investigation or prosecution, or a national security operation, related to the incident that gave rise to the cause of action, until such time as the Attorney General advises the court that such request, demand, or order will no longer so interfere. (B) A stay under this paragraph shall be in effect during the 12-month period beginning on the date on which the court issues the order to stay discovery. The court shall renew the order to stay discovery for additional 12-month periods upon motion by the United States if the Attorney General certifies that discovery would significantly interfere with a criminal investigation or prosecution, or a national security operation, related to the incident that gave rise to the cause of action. (2) Sunset.— (A) Subject to subparagraph (B), no stay shall be granted or continued in effect under paragraph (1) after the date that is 10 years after the date on which the incident that gave rise to the cause of action occurred. (B) After the period referred to in subparagraph (A), the court, upon request of the Attorney General, may stay any request, demand, or order for discovery on the United States that the court finds a substantial likelihood would— (i) create a serious threat of death or serious bodily injury to any person; (ii) adversely affect the ability of the United States to work in cooperation with foreign and international law enforcement agencies in investigating violations of United States law; or (iii) obstruct the criminal case related to the incident that gave rise to the cause of action or undermine the potential for a conviction in such case. (3) Evaluation of evidence.— The court’s evaluation of any request for a stay under this subsection filed by the Attorney General shall be conducted ex parte and in camera. (4) Bar on motions to dismiss.— A stay of discovery under this subsection shall constitute a bar to the granting of a motion to dismiss under rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure. (5) Construction.— Nothing in this subsection shall prevent the United States from seeking protective orders or asserting privileges ordinarily available to the United States.
References In Text
Rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure, referred to in subsec. (g)(4), are set out in the Appendix to this title.
Amendments
2008—Subsec. (a)(7). Pub. L. 110–181, § 1083(b)(1)(A), struck out par. (7) which provided for lack of jurisdictional immunity in certain cases in which money damages were sought against a foreign state for personal injury or death caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act.
Subsecs. (e), (f). Pub. L. 110–181, § 1083(b)(1)(B), struck out subsecs. (e) and (f) which defined “torture”, “extrajudicial killing”, “hostage taking”, and “aircraft sabotage” and provided for a 10-year statute of limitations for actions brought under former subsec. (a)(7) of this section.
Subsec. (g)(1)(A). Pub. L. 110–181, § 1083(b)(1)(C), substituted “but for section 1605A” for “but for subsection (a)(7)”.
2006—Subsec. (d). Pub. L. 109–304 substituted “section 31301 of title 46” and “chapter 313 of title 46” for “the Ship Mortgage Act, 1920 (46 U.S.C. 911 and following)” and “that Act”, respectively.
2002—Subsec. (a)(7)(A). Pub. L. 107–117 amended Pub. L. 107–77. See 2001 Amendment note below.
2001—Subsec. (a)(7)(A). Pub. L. 107–77, as amended by Pub. L. 107–117, inserted before semicolon “or the act is related to Case Number 1:00CV03110(EGS) in the United States District Court for the District of Columbia”.
1997—Subsec. (a)(7)(B)(ii). Pub. L. 105–11 substituted “neither the claimant nor the victim was” for “the claimant or victim was not”.
1996—Subsec. (a)(7). Pub. L. 104–132, § 221(a)(1), added par. (7).
Subsecs. (e) to (g). Pub. L. 104–132, § 221(a)(2), added subsecs. (e) to (g).
1990—Subsec. (a)(6). Pub. L. 101–650 substituted “state” for “State” after “foreign”.
1988—Subsec. (a)(6). Pub. L. 100–669 added par. (6).
Subsec. (b). Pub. L. 100–702, § 1(3), struck out at end “Whenever notice is delivered under subsection (b)(1) of this section, the maritime lien shall thereafter be deemed to be an in personam claim against the foreign state which at that time owns the vessel or cargo involved: Provided, That a court may not award judgment against the foreign state in an amount greater than the value of the vessel or cargo upon which the maritime lien arose, such value to be determined as of the time notice is served under subsection (b)(1) of this section.”
Subsec. (b)(1). Pub. L. 100–640, § 1(1), substituted “and if the vessel or cargo is arrested pursuant to process obtained on behalf of the party bringing the suit, the service of process of arrest shall be deemed to constitute valid delivery of such notice, but the party bringing the suit shall be liable for any damages sustained by the foreign state as a result of the arrest if the party bringing the suit had actual or constructive knowledge that the vessel or cargo of a foreign state was involved” for “but such notice shall not be deemed to have been delivered, nor may it thereafter be delivered, if the vessel or cargo is arrested pursuant to process obtained on behalf of the party bringing the suit—unless the party was unaware that the vessel or cargo of a foreign state was involved, in which event the service of process of arrest shall be deemed to constitute valid delivery of such notice”.
Subsec. (b)(2). Pub. L. 100–640, § 1(2), substituted “paragraph (1) of this subsection” for “subsection (b)(1) of this section”.
Subsecs. (c), (d). Pub. L. 100–702, § 1(3), added subsecs. (c) and (d).
Effective Date Of Amendment
For applicability of amendments by Pub. L. 110–181 to pending cases, see section 1083(c) of Pub. L. 110–181, set out as an Effective Date note under section 1605A of this title.
Pub. L. 105–11 provided that the amendment made by that Act was effective with respect to any cause of action arising before, on, or after
Pub. L. 104–132, title II, § 221(c),
Pub. L. 100–640, § 3,
Miscellaneous
Pub. L. 104–208, div. A, title I, § 101(c) [title V, § 589],