GOLIATH vs GOLIATH: A Question of Jurisdiction & Immunity

Several lawsuits have been filed against China in a number of U.S. district courts over the last two months in response to the deaths inflicted by the pandemic and the global economic meltdown unleashed by its endlessly propagating shockwaves. These include lawsuits by individuals, class-actions and even by a U.S. State.

The reaction amongst many in the U.S and outside has been almost entirely dismissive of these lawsuits. The notion that Sovereign States can be sued in foreign courts quite simply defies belief and invites incredulity.

The general suspicion regarding the availability of jurisdiction in the US courts over foreign states is not without some basis. There have been a number of cases in the past where the Courts indeed held that they had no jurisdiction over foreign states and, on that basis, went on to reject compensatory or damages claims brought in US courts against such states.

Take an example.

Acree v. Republic of Iraq-I was a case brought before the District Court Columbia by 17 American soldiers, joined by their close family members, who had been captured and held as prisoners of war by the Iraqi Government while serving in the Gulf War in early 1991.

The Plaintiffs in that case had brought their suit in the District Court under the terrorism exception to the Foreign Sovereign Immunities Act (FSIA) against the Republic of Iraq, the Iraqi Intelligence Service, and Saddam Hussein, in his official capacity as President of Iraq (collectively "Iraq"), seeking compensatory and punitive damages for the horrific acts of torture they suffered during their captivity. Pursuant to Iraq’s failure to appear and contest, the District Court proceeded to evaluate the Plaintiff’s evidentiary submissions before entering judgment in their favor. The District Court awarded damages against Iraq aggregating to over $959 million. 

A couple of weeks following the District Court entered its judgment for Plaintiffs, the United States filed a motion to intervene in order to contest the District Court's subject matter jurisdiction. The United States argued that the then recently enacted provisions of the Emergency Wartime Supplemental Appropriations Act, made the terrorism exception to the FSIA inapplicable to Iraq and thereby stripped the District Court of its jurisdiction over the plaintiff’s lawsuit. While the District Court denied the United States' motion to intervene as untimely, the Court of appeals went on to vacate the District Court judgment on the ground that the District Court committed an abuse of discretion. The Court of Appeals held that the United States possessed weighty foreign policy interests that were clearly threatened by the entry of judgment for the plaintiffs in that case.

Of course, that was in 2004. Over a decade and a half has passed since and much has changed. Not in the least, the amendments to the FSIA in 2008 and a spate of judicial decisions that have developed the jurisprudence on legislations that have now been invoked in the lawsuits against China.

As a matter of fact, in the very next year, the same District Court of Columbia went on to rule in favor of the plaintiffs in the case of Salazar vs Islamic Republic of Iran, a case that had arisen out of the bombing of the U.S. Embassy in Lebanon on April 18, 1983. The court awarded economic and compensatory damages in excess of $18 million in favor of the plaintiff who was a widow of Mark E. Salazar, a decorated Army Staff Sergeant who was fatally injured in the bombing.

When one surveys that the US judicial history, one finds it teeming with examples and counter-examples premised on such and like claims. And it would appear that while dealing with such claims, the Court do accord substantial deference to submissions filed by the United States and its avowed position before the court.

But lets come back to the immediate point at hand. US and China.

And to get a flavor of the theme under discussion, lets take a cursory look at the plea of jurisdiction taken by the State of Missouri with respect to the Defendants in its lawsuit against China last month. This would help contextualise the discussion.

PLEADING "JURISDICTION" IN THE MISSOURI LAWSUIT

This is what the State of Missouri had to say while framing its plea regarding jurisdiction in US Courts vis-a-vis China:

35. Article III, Section 2 of the United States Constitution extends the judicial power of federal courts to “all Cases ... between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”

36. This Court is given jurisdiction of this matter under 28 U.S.C. § 1330, which provides for jurisdiction over foreign states, and 28 U.S.C. § 1332(a), which provides for jurisdiction over citizens of a State and citizens or subjects of a foreign state and a foreign state itself, where the amount in controversy exceeds $75,000...

38. This Court has jurisdiction over cases filed against foreign states such as the Chinese Government Defendants under the commercial activity exception to the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1605(a)(2), which provides:

(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case— ... (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...

40. On information and belief, the conduct of Defendants described below arises out of commercial activities that have caused a direct effect in the United States and in the State of Missouri, including, but not limited to: (1) operation of the healthcare system in Wuhan and throughout China; (2) commercial research on viruses by the Wuhan Institute and Chinese Academy of Sciences; (3) the operation of traditional and social media platforms for commercial gain; and (4) production, purchasing, and import and export of medical equipment, such as personal protective equipment (“PPE”), used in COVID-19 efforts.

 41. Additionally and in the alternative, this Court has jurisdiction over cases filed against foreign states such as the Chinese Government Defendants under the non-commercial tort exception to the FSIA, 28 U.S.C. § 1605(a)(5), which provides:

(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case— ... (5) not otherwise encompassed by [the commercial activities exception], 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.

 42. The non-commercial tort exception of 28 U.S.C. § 1605(a)(5) applies here because 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.”...

44. In addition, the Communist Party is not a foreign state or an agency or instrumentality of a foreign state, and is not entitled to any form of sovereign immunity.

 45. This Court has personal jurisdiction over the Defendants because the torts, harms, and injuries occurred in this District and in this Division of this District, and they otherwise have sufficient contacts in Missouri and the rest of the United States to render the exercise of jurisdiction by this Court permissible.

The Missouri Lawsuit, like most others against China in the wake of the Pandemic, is being viewed with great pessimism. A large majority simply rejects the notion that the US courts have any ability to summon foreign states in connection with such lawsuits. Some regard causes of the nature raised by Missouri to appertain to external affairs, hence being the sole prerogative of the executive to deal.

THE TEXAS LAWSUIT BY FREEDOM WATCH

In the $20 trillion class-action lawsuit filed against China at the District Court at Texas by Freedom Watch and Larry Klayman, the plea of jurisdiction is sought to be argued thus:

 4. This Court has subject matter jurisdiction over this action pursuant to the Justice Against Sponsors of Terrorism Act ("JASTA") exception 18 U.S.C. § 2333.

 5. The JASTA exception to the Foreign Sovereign Immunities Act (28 U.S.C. 1602, et seq.) incorporates the definition of international terrorism from 8 U.S.C. 2331.

 6. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331.

7. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1332(a)(2), (3) and (4), as a civil action brought by citizens of the United States against subjects of a foreign state or foreign state, because there is complete diversity of citizenship between the Plaintiffs and the Defendants in China.

 8. This Court also has subject matter jurisdiction over this action pursuant to 28 U.S.C. §1605 (general exceptions to jurisdictional immunity of a foreign state).

 9. The matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs.

 10. This Court also has supplemental jurisdiction over this action pursuant to 28 U.S.C. §1367.

Interestingly, a host of the other lawsuits against China filed in the last couple of months follow pretty much the same pattern of pleading jurisdiction.

With all this in the background, now comes a US Supreme Court decision that may serve as timely reminder to the all and sundry naysayers.

THE OPATI LAWSUIT AGAINST SUDAN

In a decision rendered last week, the U.S. Supreme Court decided a matter (Monicah Okoba Opati, et al., vs. Republic of Sudan, et al) that had crept up from the District Court through the Court of Appeals, District of Columbia Circuit before finally finding itself at the desks of the US SC judges.

The genesis of the lawsuit against the Republic of Sudan lay in the 1998 bombings of US embassies.

On August 7, 1998 truck bombs exploded outside the United States embassies in Nairobi, Kenya and in Dar es Salaam, Tanzania. These explosions left more than 200 people dead and injured more than a thousand. A large number of the victims of the bombings were U.S. citizens, government employees, or contractors.

It was discovered subsequently that the bombings were the handiwork of al Qaeda (this eventually culminated in the September 11, 2001 attack on the United States itself). During the years 1991 to 1996, Osama bin Laden and his terrorist organization al Qaeda, had maintained a base of operations in Sudan. During this period, al Qaeda also succeeded in developing terrorist cells in Kenya and Tanzania that would later launch the embassy attacks.

From 2001, victims of the bombings began to bring lawsuits against the Republic of Sudan and the Islamic Republic of Iran, alleging that Sudan, its Ministry of the Interior, Iran, and its Ministry of Information and Security materially supported al Qaeda during the 1990s. Specifically, the plaintiffs contended Sudan provided a safe harbour to al Qaeda and that Iran, through its proxy Hezbollah, trained al Qaeda militants.

In bringing these cases, the plaintiffs had relied upon a provision in the FSIA that withdraws sovereign immunity and grants court’s jurisdiction to hear suits against foreign states designated as sponsors of terrorism. This provision and its successor are known as the "terrorism exception" to foreign sovereign immunity. Initially, neither Sudan nor Iran appeared in court to defend against the suits. In 2004 Sudan secured counsel and participated in the litigation.

Within a year, its communication with and payment of its attorneys ceased but counsel continued to litigate until allowed to withdraw in 2009. In the years that followed, several new groups of plaintiffs filed suits against Sudan and Iran. The sovereign defendants did not appear in any of these cases, and in 2010 the district court entered defaults in several of the cases now before us. After an evidentiary hearing in 2010 and the filing of still more cases, the court in 2014 entered final judgments in all pending cases. The district court entered judgment for the plaintiffs and awarded approximately $10.2 billion in damages, including roughly $4.3 billion in punitive damages.

Sudan then reappeared, filing appeals and motions to vacate the judgments. The district court denied Sudan's motions to vacate, and Sudan again appealed.

On appeal, however, Sudan argued, and the Court of Appeals agreed, that the FSIA barred the punitive damages award. It is that decision that was under review before the US Supreme Court and has, ultimately, been vacated.

Since the matter that most concerns most in these line of cases lies within the narrow compass of sovereign immunity, its scope, meaning, application, extent, implications and exceptions, if any, this is the issue that receives sole focus here. I might as well clarify that I do not advert to political questions, but simply to the legal basis for availability of jurisdiction with US courts against foreign states under certain circumstances and the possibility of rejection of any defense purporting to invoke the principles of sovereign immunity in such cases.

HISTORY OF THE US FSIA LEGISLATION

The FSIA was enacted in 1976 and the US courts have held that it provides the sole means for suing a foreign sovereign in the courts of the United States. Ordinarily, a foreign state is regarded as presumptively immune from the jurisdiction of the US federal and state courts, subject to several exceptions codified in §§ 1605, 1605A, 1605B, and 1607.

At the time of its original enactment, the FSIA had generally attempted to codify the "restrictive theory" of sovereign immunity, which had served as the basis for sovereign immunity determinations since 1952. Restrictive theory rendered sovereign states immune from actions arising from their public acts. It however, did not extend immunity for their strictly commercial acts. Thus, the original exceptions in the FSIA withdrew immunity for a sovereign's commercial activities conducted in or causing a direct effect in the United States, and for certain other activities.

However, the original exceptions in the FSIA did not create any substantive cause of action against a foreign state. Instead, the FSIA stipulated that "the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances" except that it prohibited the award of punitive damages against a sovereign.

Resultantly, a plaintiff suing a foreign sovereign was, per force, consigned to rely upon state substantive law to redress his grievances. Viewed thus, the FSIA operated as a 'pass-through' to state law principles, in as much as it granted jurisdiction but left the underlying substantive law unchanged.

Until 1996 the FSIA afforded no relief for victims of a terrorist attack and the Courts had no discretion in the matter but to rebuff any efforts of plaintiffs to fit terrorism-related suits into an existing exception to sovereign immunity. However, this changed with the passage of the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996. The AEDPA added a new exception to the FSIA withdrawing immunity and granting jurisdiction over cases in which:

money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources ... for such an act if such act or provision of material support is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency.

Notably, the new "terrorism exception" thus carved out was applicable only to:

1.  a suit in which the claimant or the victim was a U.S. national, and
2. the defendant state was designated a sponsor of terrorism under State Department regulations at or around the time of the act giving rise to the suit.

 Shortly following the original enactment of the AEDPA, an amendment was brought in by the Congress and provided that:

[A]n official, employee, or agent of a foreign state designated as a state sponsor of terrorism ... while acting within the scope of his or her office, employment, or agency shall be liable to a United States national or the national's legal representative for personal injury or death caused by acts of that official, employee, or agent for which the courts of the United States may maintain jurisdiction under section 1605(a)(7) of title 28, United States Code, for money damages which may include economic damages, solatium, pain, and suffering, and punitive damages if the acts were among those described in section 1605(a)(7). 

 This amendment was intended to deter state support for terrorism and effectively,

1.  provided a cause of action against officials, employees, or agents of a designated state sponsor of terrorism and
2. authorized the award of punitive damages against such a defendant.

This was a significant departure from the FSIA exceptions, as the latter did not provide a cause of action or allow for punitive damages.

However, the decision of the Court of Appeals, District of Columbia in the case of Cicippio-Puleo v. Islamic Republic of Iran, the Court of Appeals, District of Columbia created some difficulties by holding that "neither 28 U.S.C. § 1605(a)(7) nor the Flatow Amendment, nor the two considered in tandem, creates a private right of action against a foreign government." Finding that there was no federal cause of action, the Court of Appeals had remanded the case "to allow plaintiffs an opportunity to amend their complaint to state a cause of action under some other source of law, including state law." Accordingly, a plaintiff proceeding under the terrorism exception had to fall upon the same pass-through process that governed an action under the original FSIA exceptions. 

This in turn gave rise to another spate of difficulties. Differences in substantive law among the states caused recoveries to vary among otherwise similarly situated claimants, denying, in some cases, any recovery whatsoever.

Finally, these problems were addressed by the Congress in 2008 when Section 1083 of the National Defense Authorization Act for Fiscal Year 2008 repealed §1605(a)(7) and replaced it with a new "Terrorism exception to the jurisdictional immunity of a foreign state." (NDAA).

This new exception brought in a rush of changes: it withdrew immunity, granted jurisdiction, and authorized suits against state sponsors of terrorism for "personal injury or death" arising from the same predicate acts such as torture, extrajudicial killing, aircraft sabotage, hostage taking, and the provision of material support- as did indeed the old exception.

This new exception extended jurisdiction for suits to "claimants or victims" who were U.S. nationals as also to members of the armed forces and to government employees or contractors acting within the scope of their employment. Most importantly, the new exception authorized a private right of action against a foreign state over which a court could maintain jurisdiction under § 1605A(a).

The NDAA also authorized awards of punitive damages under the new federal cause of action.

But the 2008 NDAA was not the end of the story with FSIA amendments. Take the 2016 Justice Against Sponsors of Terrorism Act (JASTA), which grew out of a federal fact-finding commission that looked into the planning, funding, and carrying-out of the 9/11 attacks. JASTA once again amended the FSIA and Anti-Terrorism Act to create a civil remedy for U.S. victims of terrorist attacks on or after 9/11 against both foreign states and private parties, including for aiding and abetting and civil conspiracy.

JASTA certainly hasn’t helped the case of foreign states as it further narrows the scope of the legal doctrine of foreign sovereign immunity by amending the FSIA and the Anti-Terrorism and Effective Death Penalty Act with respect to civil claims against a foreign state arising from injuries, death, or damages from acts of international terrorism.

At this point, one would do well to remember how things work in the United States. JASTA was passed in response to a case, which had been dismissed at the district court level, brought against the Kingdom of Saudi Arabia. The plaintiffs in that case had alleged that Saudi Arabia “directly and knowingly assisted the hijackers and plotters who carried out the [9/11] attacks” and indirectly funded and provided operational support to the attackers through charity organizations.

Previously, U.S. citizens were permitted to sue a foreign state if such state was designated as a state sponsor of terrorism by the United States Department of State and if they were harmed by that state's aid for international terrorism. JASTA authorized federal courts to exercise subject matter jurisdiction over any foreign state's support for acts of international terrorism against a U.S. national or property regardless of whether such state was designated as a state sponsor of terrorism.

THE USSC DECISION IN THE OPATI CASE LAST WEEK

While writing the unanimous decision (8-0, with Justice Kavanaugh taking no part in the consideration or decision) in the Opati case delivered last week, Justice Gorsuch noted as follows:

The starting point for nearly any dispute touching on foreign sovereign immunity lies in Schooner Exchange v. McFaddon, 7 Cranch 116 (1812). There, Chief Justice Marshall explained that foreign sovereigns do not enjoy an inherent right to be held immune from suit in American courts: “The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself.” Id., at 136. Still, Chief Justice Marshall continued, many countries had declined to exercise jurisdiction over foreign sovereigns in cases involving foreign ministers and militaries. Id., at 137–140. And, accepting a suggestion from the Executive Branch, the Court agreed as a matter of comity to extend that same immunity to a foreign sovereign in the case at hand.

For much of our history, claims of foreign sovereign immunity were handled on a piecework basis that roughly paralleled the process in Schooner Exchange. Typically, after a plaintiff sought to sue a foreign sovereign in an American court, the Executive Branch, acting through the State Department, filed a “suggestion of immunity”-case-specific guidance about the foreign sovereign’s entitlement to immunity. See Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480, 487 (1983). Because foreign sovereign immunity is a matter of “grace and comity,” Republic of Austria v. Altmann, 541 U. S. 677, 689 (2004), and so often implicates judgments the Constitution reserves to the political branches, courts “consistently . . . deferred” to these suggestions. Verlinden, 461 U. S., at 486.

Justice Gorsuch proceeded to analyse the history of this doctrine:

Eventually, though, this arrangement began to breakdown. In the mid-20th century, the State Department started to take a more restrictive and nuanced approach to foreign sovereign immunity. See id., at 486–487. Sometimes, too, foreign sovereigns neglected to ask the State Department to weigh in, leaving courts to make immunity decisions on their own. See id., at 487–488. “Not surprisingly” given these developments, “the governing standards” for foreign sovereign immunity determinations over time became “neither clear nor uniformly applied.”

In 1976, Congress sought to remedy the problem and address foreign sovereign immunity on a more comprehensive basis. The result was the Foreign Sovereign Immunities Act (FSIA). As a baseline rule, the FSIA holds foreign states and their instrumentalities immune from the jurisdiction of federal and state courts. See 28 U. S. C.§§1603(a), 1604. But the law also includes a number of exceptions. See, e.g., §§1605, 1607. Of particular relevance today is the terrorism exception Congress added to the law in 1996. That exception permits certain plaintiffs to bring suits against countries who have committed or supported specified acts of terrorism and who are designated by the State Department as state sponsors of terror. Still, as originally enacted, the exception shielded even these countries from the possibility of punitive damages. See Antiterrorism and Effective Death Penalty Act of 1996 (codifying state-sponsored terrorism exception at 28 U. S. C. §1605(a)(7));§1606 (generally barring punitive damages in suits proceeding under any of §1605’s sovereign immunity exceptions).

Justice Gorsuch then went on to sequence the latest amendments to the FSIA:

Congress amended the FSIA again in the National Defense Authorization Act for Fiscal Year 2008 (NDAA), 122 Stat. 338. Four changes, all found in a single section, bear mention here. First, in §1083(a) of the NDAA, Congress moved the state-sponsored terrorism exception from its original home in §1605(a)(7) to a new section of the U. S. Code, 28 U. S. C. §1605A. This had the effect of freeing claims brought under the terrorism exception from the FSIA’s usual bar on punitive damages. See §1606 (denying punitive damages in suits proceeding under a sovereign immunity exception found in §1605 but not §1605A). Second, also in §1083(a), Congress created an express federal cause of action for acts of terror. This new cause of action, codified at 28 U. S. C. §1605A(c), is open to plaintiffs who are U. S. nationals, members of the Armed Forces, U. S. government employees or contractors, and their legal representatives, and it expressly authorizes punitive damages. Third, in §1083(c)(2) of the NDAA, a provision titled “Prior Actions,” Congress addressed existing lawsuits that had been “adversely affected on the groun[d] that” prior law “fail[ed] to create a cause of action against the state.” Actions like these, Congress instructed, were to be given effect “as if ” they had been originally filed under §1605A(c)’s new federal cause of action. Finally, in §1083(c)(3) of the NDAA, a provision titled “Related Actions,” Congress provided a time-limited opportunity for plaintiffs to file new actions “arising out of the same act or incident” as an earlier action and claim the benefits of 28 U. S. C. §1605A.

Strangely, Sudan did not challenge the constitutionality of the 2008 NDAA amendments. Its challenge in the Court of Appeals was limited to the field of statutory interpretation and to the propriety of award of punitive damages based on retroactive application of law under the federal cause of action in §1605A(c). In particular, Sudan's challenged hinged on how the principle of legislative prospectivity plays an important role in construction of enactments and how that principle should inform the Court's interpretation of the NDAA.

In conclusion, the Supreme Court proceeded to vacate the decision of the Court of Appeals and held that punitive damages were permissible in connection with federal claims. 

THE USSC DECISION IN REPUBLIC OF SUDAN VS HARRISON ET AL

In another decision by the US Supreme Court last year in the case of Republic of Sudan vs Harrison et al., the Court had occasion to deal with another action that had been instituted against Sudan. Those lawsuits had originated in the bombing of the USS Cole.

On October 12, 2000, the USS Cole, a United States Navy guided-missile destroyer, entered the harbour of Aden, Yemen, for what was intended to be a brief refuelling stop. While refuelling was underway, a small boat drew along the side of the Cole, and the occupants of the boat detonated explosives that tore a hole in the side of the Cole. Seventeen crewmembers were killed, and dozens more were injured. Al Qaeda later claimed responsibility for the attack.

The Plaintiffs in that case had been victims of the USS Cole bombing and their family members. In 2010, the plaintiffs sued the Republic of Sudan, alleging that Sudan had provided material support to al Qaeda for the bombing.

That case had turned upon another technical aspect of the FSIA. Because the original plaintiffs had brought their suit under the FSIA, they were required to serve Sudan with process under §1608(a). It was not disputed that service could not be made under §1608(a)(1) or §1608(a)(2), and the original plaintiffs had therefore turned to §1608(a)(3). At the plaintiffs request, the clerk of the court sent the service packet, return receipt requested, to: “Republic of Sudan, Deng Alor Koul, Minister of Foreign Affairs, Embassy of the Republic of Sudan, 2210 Massachusetts Avenue NW, Washington, DC 20008.” The clerk certified that the service packet had been sent and, a few days later, certified that a signed receipt had been returned.

After Sudan failed to appear in the litigation, the District Court for the District of Columbia held an evidentiary hearing and entered a $314 million default judgment against Sudan. Again at the request of the original plaintiffs, the clerk of the court mailed a copy of the default judgment in the same manner that the clerk had previously used.

With their default judgment in hand, the original plaintiffs turned to the District Court for the Southern District of New York, where they sought to register the judgment and satisfy it through orders requiring several banks to turn over Sudanese assets. Pursuant to §1610(c), the District Court entered an order confirming that a sufficient period of time had elapsed following the entry and notice of the default judgment, and the court then issued three turnover orders.

It was at this point that Sudan made an appearance for the purpose of contesting jurisdiction. It filed a notice of appeal from each of the three turnover orders and contended on appeal that the default judgment was invalid for lack of personal jurisdiction. In particular, Sudan maintained that §1608(a)(3) required that the service packet be sent to its foreign minister at his principal office in Khartoum, the capital of Sudan, and not to the Sudanese Embassy in the United States. 

The Court of Appeals for the Second Circuit had rejected this argument and affirmed the orders of the District Court. The Second Circuit reasoned that, although §1608(a)(3) required that a service packet be mailed “to the head of the ministry of foreign affairs of the foreign state concerned,” the statute “is silent as to a specific location where the mailing is to be addressed.” In light of this, the court concluded that “the method chosen by plaintiffs—a mailing addressed to the minister of foreign affairs at the embassy—was consistent with the language of the statute and could reasonably be expected to result in delivery to the intended person.”

However, subsequent to the Second Circuit’s decision, the Court of Appeals for the Fourth Circuit held in a similar case that “does not authorize delivery of service to a foreign state’s embassy even if it correctly identifies the intended recipient as the head of the ministry of foreign affairs.” Kumar v. Republic of Sudan, (2018).

It was in these circumstances that the Supreme Court had, in the case of Republic of Sudan vs Harrison et al taken up the matters to resolve the conflict in the two decisions.

After detailed analyses and reasoning, the US Supreme Court had concluded that "a service packet must be addressed and dispatched to the foreign minister at the minister’s office in the foreign state." On this basis, the Court reversed the judgment of the Court of Appeals and remanded the case for further proceedings consistent with the Supreme Court's opinion. Justice Thomas had rendered an interesting dissenting opinion and found that the method of service employed by respondents here complied with the FSIA.

BACK TO THE PRESENT

Without reference to matters of evidence and related merits, it would appear that the Missouri lawsuit stands on much stronger footing vis-a-vis the lawsuits that had been brought against the Republic of Sudan. The Plaintiff's in the Sudan lawsuits had to contend with the pre-amendment FSIA and then nudge their way into the new regime via amendments to their petitions. The Missouri lawsuit suffers from no such infirmity but is confidently mounted on legal position that has become increasingly clearer over the last couple of decades.

Of course, the Missouri lawsuit is vastly different from the lawsuits against Sudan. In particular, the circumstances constituting the causes of action agitated in the two lawsuits are almost incomparable. It would be reasonable to imagine that if the lawsuits against China do fail, they are most likely to fail- not on grounds of jurisdiction nor because the defence of sovereign immunity was successfully claimed by China, but indeed for want of clear, coherent and compelling evidence and the inability of the plaintiffs to establish causal chain connecting the causes complained of with the injury suffered. However, one would suspect that unlike a large number of previous occasions where submissions canvassed by the United States before the US courts had been instrumental in courts' disclaiming or releasing jurisdiction against foreign states, the United States brief in the present matters, as and when they are called for, would not be hospitable to China this time.

Clearly, sovereign immunity is a tricky issue and one would do well not to place bets just yet. A review of US court decisions over the last three decades will show that sovereign immunity hasn't necessarily worked as an airtight defense for foreign states in the United States all the time. The multi-billion dollar judgments passed by U.S. courts against foreign states from time to time bear testimony to that. Iran, Sudan, Saudi Arabia, Argentina et al have discovered this through an arduous legal process in the US courts. Of course, the question of enforcement is not addressed here. That would merely be following the spoils of war- it is the real war that is of greater interest.

At some point, it may just become relevant that every current justice of the US Supreme Court has an Ivy League background, and by virtue of that, married to complex legal theorising and given to expanding the horizons of constitutional jurisprudence. And more significantly, 5 of the 9 justices on the current bench are Republican-appointees. Albeit, it is of some import that the Opati decision last week saw an effacement of all manner of ideological or partisan lines, yielding a unanimous verdict against the foreign state.

Either way, it will be exciting days ahead for all who follow legal developments across jurisdictions. If the plaintiffs can push enough evidence into the courts to persuade them of the existence of a definite causal connection between the origins of the virus in China, its spread across the planet and the decimation of populations; if the Courts find enough material to enable attribution of intent to the respondents and feel inclined to view the unleashing of the novel coronavirus as but a subtle form of terrorism- who knows what tales we may live to tell. Alternatively, even if it is discovered that the coronavirus was being lab-tested and developed in China from where it made good its escape and proliferation polluting the stream of commerce, the courts may yet have a tangible basis to rule in favor of the plaintiffs.

This is the real deal: Goliath vs Goliath. And a man called Trump.

 [The author is conscious of the complexity of the issues adverted to here and the limitations of any commentary on such issues. The positions described above are based on a broad survey of US decisions, and to some, may appear to be against the tide. The final outcome in any matter eventually depends on numerous factors and considerations including nature, value, probity and weight of evidence. The authors' intention is only to invite a general discussion on a subject that has evoked extreme responses across nations.]