Sovereign No More? Recent Developments in FSIA Litigation — Jurisdiction, Enforcement, and the Evolving Exceptions

This session addresses the threshold questions that decide whether a claim against a foreign sovereign survives at all. It begins with CC/Devas v. Antrix, examining what the Court decided, what it deliberately left open on remand, and how the ruling reshapes forum selection for plaintiffs who can now bring award confirmation and other actions in federal court without proving the sovereign’s contacts with the forum. The session then turns to the exceptions themselves: the expropriation exception as narrowed by Helmerich, Philipp, and Simon and the tracing burden claimants now carry; and the commercial activity exception under 28 U.S.C. § 1605(a)(2), whose nexus requirements shape both the jurisdictional analysis and the later question of which assets can be reached. It closes with the practical mechanics of service under 28 U.S.C. § 1608 and the Hague Service Convention, where a technical misstep can undo an otherwise sound jurisdictional theory.

Winning against a sovereign is often the easier half of the case; collecting is where most matters are decided. This session covers the path from award to recovery, beginning with the arbitration exception under 28 U.S.C. § 1605(a)(6), the New York and ICSID Conventions, and the questions U.S. courts now face when sovereigns resist enforcement of intra-EU investment awards on the ground that no valid arbitration agreement exists. It then moves to attachment and execution under §§ 1609–1611, using Attestor Master Value Fund v. Argentina to explain when property in the United States is “used for a commercial activity” and how courts locate intangible property for attachment purposes. The session concludes with the hardest current questions: central bank and sanctioned assets, the interplay between OFAC blocking and FSIA immunity, and the strategic sequencing of enforcement actions across jurisdictions.