International Arbitration Practice Group
October 11, 2016
JASTA Amendments to FSIA Become Law
Introduction1
On September 28, 2016, the U.S. Congress overwhelmingly voted to override
President Obama’s veto of the Justice Against Sponsors of Terrorism Act
(JASTA), a bill whose purpose was to curtail foreign states’ ability to invoke
sovereign immunity in response to civil lawsuits alleging that the state(s) had
committed or aided a terrorist attack against U.S. nationals or interests.
JASTA was first introduced in Congress in December 2009, and more
recently reintroduced on September 16, 2015. Although members of
Congress expressed misgivings about JASTA’s “unintended consequences”
that could affect U.S. interests abroad, it by overriding the veto by wide
majorities, JASTA has become law.
JASTA amends the U.S. Foreign Sovereign Immunities Act (FSIA), the legal
regime that governs litigation against foreign sovereigns and state
instrumentalities in American courts. The FSIA establishes a general
presumption that foreign sovereigns are immune from suit, subject to certain
exceptions.2 JASTA, however, creates a significantly expanded exception to
sovereign immunity designed to enable private plaintiffs to bring suit against
foreign states based on allegations that the state(s) committed or aided
terrorist acts against U.S. interests or nationals, and to legislatively abrogate
judicial decisions that had dismissed such cases brought by victims of the
September 11, 2011 attacks on the United States. While JASTA secured
major support in Congress, even though it was the subject of little committee
consideration, it passed the House and Senate unanimously by voice vote,
many members from both the House and Senate expressed concerns over the
legislation and flagged the need to “fix” the law. In addition, several
commentators – including the national security and defense establishment,
major think tanks and the editorial boards of major U.S. newspapers –
inveighed against its adoption and argued for reconsideration.3 Furthermore,
several U.S. allies expressed alarm at Congress’ willingness to tinker with the
well-understood system of sovereign immunity.4
Sovereign Immunity under U.S. Law
The doctrine of sovereign immunity “occupies an important place in
international law and international relations”.5 It is derived from the principle
of sovereign equality, meaning that all sovereign states are equal on the
international plane and, consequently, that no state should sit in judgment of
For more information, contact:
James E. Berger
+1 212 556 2202
jberger@kslaw.com
Charlene C. Sun
+1 212 556 2107
csun@kslaw.com
King & Spalding
New York
1185 Avenue of the Americas
New York, New York 10036-4003
Tel: +1 212 556 2100
Fax: +1 212 556 2222
www.kslaw.com
