Published in Litigation, Volume 43, Number 2, Winter 2017. © 2017 by the American Bar Association. Reproduced with permission. All rights reserved. This information
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37
Playing the
Sovereign Card
Defending Foreign Sovereigns
in U.S. Courts
LAURA G. FERGUSON AND CHARLES F.B. MCALEER JR.
The authors are members of Miller & Chevalier Chartered, Washington, D.C.
The Foreign Sovereign Immunities Act (FSI A) turns 40 this
year, presenting a fitti ng occasion to take stock of the perks and
pitfalls of representing a foreig n state in U.S. courts. This ar ticle
provides an overview of the spe cial rules that apply to foreign
sovereigns at each step of the litigat ion process—from service of
complaint to enforcement of judgment—and also discuss es the
unique challenges of representing a foreig n state client.
When defending a foreign state, the f irst question to ask is
whether your client was properly served. The FSIA’s service
provision, 28 U.S.C. §1608, is the exclusive mean s for serving
process on a foreign state, politica l subdivision, or state-owned
instr umentality. See F. R . C. P. 4(j). Courts require st rict
adherence to the terms of section 1608, a lthough they frequently
will give plaint iffs another opportunit y to effect service using
the proper method. Actua l notice is not sufficient.
If the defendant is a foreign state or its p olitical subdivision,
28 U.S.C. §1608(a) provides four methods of service, in descend-
ing order of preference. The plaintiffs must attempt t he first
method or determine that it is u navailable before proceeding to
the second method, and so on. The f irst method for foreign states
or political subdivisions is by “spe cial arrangement” bet ween the
plaintiffs a nd foreign state. 28 U.S.C. §1608(a)(1). Courts require
a definite mani festation of agreement when determining that a
special arra ngement has been made, such as a contract provi-
sion specifying a met hod of service in the event of suit. Where
there is no special ar rangement, the plaintiffs must deter mine
whether the defendant can be ser ved via an international ser vice
convention, such a s the Hague Convent ion on the Service Abroa d
of Judicial and Extrajudicial D ocuments in Civil or Commercial
Matters. 28 U.S.C. §1608(a)(2). If the defendant is not a part y to
such a convention, service may be made by hav ing the clerk of
the court send a copy of the summon s and complaint, along with
a translation in t he official languag e of the foreign state, to the
head of the ministr y of foreign affairs by a form of ma il requiring
a signed receipt. 28 U.S.C. §1608(a)(3). Here, plaintiffs often go
wrong by serving t he foreign state’s embassy in the United States
or by serving someone other th an the head of the ministry of
foreign affai rs. Only after 30 days, if that met hod also fails, can
plaintiffs se ek service through diplomatic channels. Plai ntiffs
must jump through a number of hoops to ser ve via diplomatic
channels. These steps are s et out in 28 U.S.C. §1608(a)(4). The
State Department’s website also prov ides a 12-item “FSIA check-
list” that plai ntiffs should follow before submitting a request for
diplomatic ser vice.
There is a separate set of rules provided for serv ice on an
agency or instr umentality of a foreign state. These are set out
in section1608( b) and provide three means of ser vice, in de-
scending order of preference. Notably, the service by diplomatic
channels option is not avai lable for agencies or instrumentalit ies.
If your foreign state client is served i n state court, 28 U.S.C.
