Our firm recently received a call from a U.S. entity looking to file a lawsuit against a foreign government. While I cannot discuss the specifics of the case, I can tell you that the circumstances under which a U.S. entity or citizen would want to sue a foreign government fall across a broad spectrum.
The most common cause of action filed against a foreign government is a claim for contractual damages arising out of some commercial activity (where the foreign state acts not as a regulator of a market but as a private player within it). Less common cases concern wrongful seizure of assets, business torts and personal injury matters.
Whatever the circumstances, filing and serving a lawsuit against a foreign government is challenging –and a bit intimidating to those unfamiliar with the process. All kinds of issues come-up ranging from immunity and comity to diplomacy and jurisdiction—to name just a few.
While filing a lawsuit against a foreign government might seem intimidating, the process is actually straight forward once the threshold issues are ironed-out.
Foreign Sovereign Immunity Act
The Foreign Sovereign Immunities Act (FSIA) is the sole basis for establishing jurisdiction over a defendant foreign state. The defendant must be a foreign state or political subdivision, as defined in section 1603 of the Act.
If you’re contemplating a suit against an agency or instrumentality of a foreign state, you’ll have to proceed under 1608(b) of the Act. Our focus for the purpose of this post is on filing a lawsuit against a foreign state or political subdivision, so we’ll stick with 1608(a).
Presumably, you’ll be filing your complaint under one of the enumerated exceptions of the FSIA (sections 1605-1607). This determination is critical because the key jurisdictional inquiry in a case against a “foreign state” is whether the requirements of one of the statutory exceptions to immunity is satisfied. The most widely cited exception is the commercial activity exception.
If your lawsuit fits within one of the enumerated exceptions, the case can proceed against the foreign state. The next step is to serve process on the defendant foreign state.
Service of Process
Federal Rule of Civil Procedure 4(j)(1) governs service of process on foreign governments and directs you to effect service of process pursuant to 28 U.S.C. § 1608.
You’ll need to follow the section’s four-step directive for effecting service of process. You must go through the steps in the order they are laid out in the statute. That is, if service cannot be made according to 1608(a)(1), then service must be attempted pursuant to 1608(a)(2) and so forth until the various methods are exhausted.
Be careful here because strict compliance with the hierarchical method of service is required. Take special care with sections 1608(a)(3) and 16(a)(4) as these methods of service require particular attention to detail.
Plaintiffs have often attempted service of process on foreign governments and their political subdivisions without following the order and detail of the statute. Your client will not be too happy when service is invalidated simply because you overlooked a step.
Unlike a standard lawsuit, a foreign state has 60 days from the date of service to file an answer or other responsive pleading. Be sure that you revise the summons that you send along with the complaint to account for this.
Filing a lawsuit against a foreign government can be tricky at first. But after a case or two, you’ll find that the process is relatively straightforward. While every case presents a unique set of facts, following the general overview above will set you on the right path.
For more information, I recommend taking a look at: Litigation Against Foreign States in the United States Courts and Attorney Manual for Service of Process on a Foreign Defendant. Both provide detailed insight into the nuances of the FSIA.