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Former State Department Lawyers Ask Supreme Court To Leave FSIA Scope To Congress

On September 10, former US State Department lawyers filed a joint amicus brief in the Supreme Court encouraging the justices to reverse a DC Circuit court decision altering the FSIA.

A link to the brief can be found here.

The Amicus Brief

Filed in support of neither party, the amicus brief urges the Supreme Court to reverse a DC Circuit court decision (Federal Republic of Germany et al. v. Alan Philipp et al.) that revives claims related to alleged misappropriation of hundreds of millions of dollars in art stolen from German Jews.

  • According to the amici — including former US State Department lawyers Davis R. Robinson (1981 – 1985), Abraham D. Sofaer (1985 – 1990), Edwin Williamson (1990 – 1993) and David P. Stewart (1976 – 2008) — the DC Circuit decision embraces a vast expansion of the Foreign Sovereign Immunities Act's (FSIA) “expropriation” exception, far beyond Congress's original intent and inconsistent with its understanding of relevant international law.

The amici argue that re-interpretation potentially opens US courts to a wide range of claims against foreign sovereigns arising from situations of mass human rights violations committed against their own people that have been, or could be, characterized as "genocide" in violation of international law. Whether to make such a consequential change to the statute, and if so, in what terms, is a matter for the legislature, not the court.

Background

The FSIA’s “expropriation” exception was historically concerned with a foreign State’s unlawful treatment of the property of the citizens and nationals of other countries. It was clearly not understood to encompass a foreign government’s “domestic” takings of the property of its own citizens or nationals within its own territory.

  • Like most of the FSIA’s statutory exceptions, the expropriation exception was initially interpreted narrowly. Over time, however, the courts have given an increasingly broad reach both to the term “property” as well as to the meaning of “property exchanged for taken property.”
  • These decisions foreshadow a significant expansion in the scope of the exception, opening US courts to claims against foreign governments by foreign nationals (including their own citizens) in a potentially wide array of situations involving human rights violations far beyond the contemplation of Congress in enacting the statute.
  • Nothing in the statute or its legislative history indicates that Congress had in mind making US courts a global “claims resolution” forum.

AF Team

The amici are represented by James H. Hulme, Lee M. Caplan, Timothy J. Feighery, and Nadia A. Patel.

Arent Fox is a go-to international arbitration firm for its work representing foreign sovereigns, contracting parties, and investors in cross-border disputes. The International Arbitration & Dispute Resolution group regularly conducts arbitrations across major industries, including energy, reinsurance, agriculture, technology, and infrastructure.

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