holding plaintiff must “define with precision the relevant commercial activity” to establish FSIA’s commercial activity exception, which “requires focusing on the acts of the named defendant, not on other acts that may have had a causal connection with the suit.”
How later courts described this case
- holding plaintiff must “define with precision the relevant commercial activity” to establish FSIA’s commercial activity exception, which “requires focusing on the acts of the named defendant, not on other acts that may have had a causal connection with the suit.”
- noting that section 1605(a)(3) of the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605, parallels the Second Hickenlooper Amendment, and observing that “injuries to individuals have been cognizable [under international law] only where they implicate two or more different nations ... as long as a nation injures only its own nationals, however, then no other state’s interest is involved; the injury is a purely domestic affair .... ”
- explaining that the inquiry under § 1605(a)(2) “foeus[es] on the acts of the named defendant, not on other acts that may have had a causal connection with the suit”
- noting that “Congress [could not have] intended plaintiffs to be able to rephrase their takings claims in terms of conversion and thereby bring the claims even where the takings are permitted by international law”
Written by the judges who cited it.
The opinion
*1400 ALVIN B. RUBIN, Circuit Judge,
concurring.
If Mrs. Sanchez’s contractual right to receive payment of the Banco Central check is property, and if that property right has sufficient nexus with the United States to be considered situated in the United States, then, I submit, the FSIA would not exempt the “taking” of that right from attack in the United States because the right is intangible and its owner is a Nicaraguan national. If Mrs. Sanchez, who is now a resident of the United States, owned stock in a publicly held United States corporation, the Nicaraguan government’s taking of that property would not be immunized from attack in United States courts by § 1605(a)(3).
I cannot agree that “as long as a nation injures only its own nationals____” [as the majority states], then no other state’s interest is involved. The interests of the United States are involved if a nation takes property legally situated within its borders from a person resident in the United States, whether the property is tangible (as the majority agrees) or intangible. International law forbids, and certainly does not condone, a nation’s taking of private property situated in another nation simply because the owner of the property is a citizen of the rapacious nation. I see no statutory justification for the distinction drawn by the majority between the taking of tangible property that the majority says would be cognizable in our courts, and the taking of an intangible so long as that intangible has a situs in the United States. If, however, there was no taking, then it is immaterial whether the right pertained to a tangible or an intangible.
Because, in my opinion, Nicaragua’s stop-payment order was simply a breach of contract and, as such, did not constitute a “taking of property,” and because Mrs. Sanchez’s claim is, however circuitously put by her counsel, essentially one for breach of contract, not for a tort, I concur in the result.