Amicus Curiae Brief — CC/Devas (Mauritius) Limited, et al., Petitioners v. Antrix Corp. Ltd., et al.

Supreme Court briefDec 11, 2024

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Nos. 23-1201 and 24-17

In the Supreme Court of the United States

CC/DEVAS (MAURITIUS) LIMITED, ET AL., PETITIONERS

ANTRIX CORP. LTD., ET AL.

DEVAS MULTIMEDIA PRIVATE LIMITED, PETITIONER

ANTRIX CORP. LTD., ET AL.

ON WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

MARGARET L. TAYLOR

Legal Adviser

Department of State

Washington, D.C. 20520

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

EDWIN S. KNEEDLER

Deputy Solicitor General

ANTHONY A. YANG

Assistant to the Solicitor

General

SHARON SWINGLE

LEWIS S. YELIN

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

The Foreign Sovereign Immunities Act of 1976

(FSIA), 28 U.S.C. 1330, 1391(f ), 1441(d), 1602 et seq.,

provides that foreign states, including their agencies

and instrumentalities, 28 U.S.C. 1603(a) and (b), are immune from the jurisdiction of federal and state courts

in civil actions, unless the Act provides an exception to

that immunity or immunity is waived by certain international agreements. 28 U.S.C. 1604. Subsection (a) of

the Act’s provision governing jurisdiction over civil actions against foreign states provides that federal district courts shall have original jurisdiction over claims

coming within one of the Act’s exceptions to immunity.

28 U.S.C. 1330(a). Subsection (b) of that provision further provides that “[p]ersonal jurisdiction over a foreign state shall exist as to every claim for relief over

which the district courts have jurisdiction under subsection (a) where service has been made under [28 U.S.C.]

1608.” 28 U.S.C. 1330(b). The question presented is:

Whether, as a statutory matter, the FSIA requires

that a plaintiff that has sued a foreign state under an

FSIA exception to foreign sovereign immunity and that

has served the foreign state under 28 U.S.C. 1608 must

also establish that the foreign state has had minimum

contacts with the forum before the district court may

exercise personal jurisdiction over the foreign state.

(I)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1

Statement ...................................................................................... 1

Summary of argument ............................................................... 10

Argument:

I. The FSIA does not require a separate “minimum

contacts” analysis to establish personal jurisdiction

over a foreign state ........................................................ 13

A. Personal jurisdiction exists where an FSIA

exception to immunity applies and proper

service is made......................................................... 14

B. The FSIA’s legislative history provides no

basis for an independent “minimum contacts”

requirement ....................................................... 15

C. The FSIA’s exceptions to foreign sovereign

immunity do not impose an independent

“minimum contacts” requirement ..................... 17

II. This Court should remand for the court of

appeals to resolve any questions of constitutional

due process in the first instance ............................. 20

III. Personal jurisdiction over a foreign state in

this arbitration context is consistent with

constitutional due process ....................................... 23

A. Respondent consented to personal jurisdiction in its contract with Devas .......................... 23

B. A foreign state is not a “person” entitled to

Fifth Amendment due-process rights ............... 26

Conclusion ................................................................................... 34

Appendix — Statutory provisions........................................... 1a

TABLE OF AUTHORITIES

Cases:

Alden v. Maine, 527 U.S. 706 (1999) .................................... 27

(III)

Cases—Continued:

Page

Argentine Republic v. Amerada Hess Shipping

Corp., 488 U.S. 428 (1989) ...............................3, 5, 14, 15, 32

Bank Markazi v. Peterson, 578 U.S. 212 (2016) ........30, 31

Bristol-Myers Squibb Co. v. Superior Ct.,

582 U.S. 255 (2017).............................................................. 19

Burger King Corp. v. Rudzewicz,

471 U.S. 462 (1985).............................................................. 18

C&L Enters., Inc. v. Citizen Band Potawatomi

Indian Tribe, 532 U.S. 411 (2001) ............................... 25, 26

Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793)................. 27

Corporacion Mexicana de Mantenimiento

Integral v. Pemex-Exploracion y Produccion,

832 F.3d 92 (2d Cir. 2016) .................................................. 33

Cutter v. Wilkinson, 544 U.S. 709 (2005) ............................ 21

Daimler AG v. Bauman, 571 U.S. 117 (2014) .................... 18

Dames & Moore v. Regan, 453 U.S. 654 (1981) .............. 31

Food Mktg. Inst. v. Argus Leader Media,

588 U.S. 427 (2019).............................................................. 16

Fuld v. Palestine Liberation Org.,

82 F.4th 74 (5th Cir. 2023), cert. granted,

Nos. 24-20, 24-151 (Dec. 6, 2024) ....................................... 21

GSS Grp. Ltd. v. National Port Auth.,

680 F.3d 805 (D.C. Cir. 2012) ............................................. 22

Goodyear Dunlop Tires Operations, S.A. v. Brown,

564 U.S. 915 (2011).............................................................. 18

Granite Rock Co. v. International Bhd. of Teamsters, 561 U.S. 287 (2010) ................................................... 24

Haig v. Agee, 453 U.S. 280 (1981) ................................... 31

Hernandez v. Mesa, 589 U.S. 93 (2020) .......................... 31

Insurance Corp. of Ireland v. Compagnie des

Bauxites de Guinee, 456 U.S. 694 (1982) ......................... 23

Cases—Continued:

Page

International Shoe Co. v. Washington,

326 U.S. 310 (1945).............................................................. 18

J. McIntyre Mach., Ltd. v. Nicastro,

564 U.S. 873 (2011).............................................................. 18

Kerry v. Din, 576 U.S. 86 (2015) .................................... 30

LLC SPC Stileks v. Republic of Moldova,

985 F.3d 871 (D.C. Cir. 2021) ............................................. 24

Mallory v. Norfolk S. Ry., 600 U.S. 122 (2023) .................. 23

Missouri v. Jenkins, 515 U.S. 70 (1995) .............................. 34

Murray’s Lessee v. Hoboken Land & Improvement

Co., 59 U.S. (18 How.) 272 (1856) ................................. 30

Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co.,

484 U.S. 97 (1987) ............................................................... 19

Pacific Mut. Life Ins. Co. v. Haslip,

499 U.S. 1 (1991) ......................................................29, 30

PennEast Pipeline Co. v. New Jersey,

594 U.S. 482 (2021).............................................................. 28

Price v. Socialist People's Libyan Arab Jamahiriya,

294 F.3d 82 (D.C. Cir. 2002) ............................................... 19

Principality of Monaco v. Mississippi,

292 U.S. 313 (1934).............................................................. 28

Regan v. Wald, 468 U.S. 222 (1984) ................................ 31

Republic of Argentina v. Weltover, Inc.,

504 U.S. 607 (1992)........................................................ 22, 23

Republic of Sudan v. Harrison, 587 U.S. 1 (2019) ............. 15

The Schooner Exchange v. McFaddon,

11 U.S. (7 Cranch) 116 (1812)....................................... 29

Samatar v. Yousuf, 560 U.S. 305 (2010)............................... 15

South Carolina v. Katzenbach, 383 U.S. 301 (1966) ........... 27

Turkiye Halk Bankasi A.S. v. United States,

598 U.S. 264 (2023)...................................................... 4, 5, 32

United States v. Cooper Corp., 312 U.S. 600 (1941) ........... 27

Cases—Continued:

Page

United States v. Curtiss-Wright Export Corp.,

299 U.S. 304 (1936) ..................................................28, 29

Verlinden B.V. v. Central Bank of Nigeria,

461 U.S. 480 (1983)............................................ 14, 15, 19, 32

Vermont Agency of Natural Res. v. United States

ex rel. Stevens, 529 U.S. 765 (2000) ................................... 29

Volt Info. Scis., Inc. v. Board of Trs. of Leland

Stanford Junior Univ., 489 U.S. 468 (1989) .................... 24

World-Wide Volkswagen Corp.v. Woodson,

444 U.S. 86 (1980) ............................................................... 18

Constitution, treaty, statutes, and rules:

U.S. Const.:

Art. III, § 1 ....................................................................... 33

Amend. V (Due Process Clause) ............11, 12, 18, 21, 23,

26, 27, 29, 30, 33

Amend. XIV, § 1 ....................................... 11, 17-19, 21, 22

Convention on the Recognition and Enforcement of

Foreign Arbitral Awards, done June 10, 1958,

21 U.S.T. 2517, T.I.A.S. No. 6997 ........................................ 3

Art. I(3), 21 U.S.T. 2519 .................................................... 3

Art. III, 21 U.S.T. 2519 ..................................................... 3

Art. V, 21 U.S.T. 2520 ....................................................... 3

Note:

21 U.S.T. 2563 .............................................................. 3

21 U.S.T. 2566 .............................................................. 3

Foreign Sovereign Immunities Act of 1976:

28 U.S.C. 1330 ...............................................3, 4, 10, 14, 1a

28 U.S.C. 1330(a) .......................................... 5-7, 13, 14, 1a

28 U.S.C. 1330(b) ............................ 5-7, 9-11, 13-17, 33, 1a

28 U.S.C. 1391(b) ....................................................... 33, 2a

28 U.S.C. 1391(b)(2) .................................................. 33, 2a

VII

Statutes and rules—Continued:

Page

28 U.S.C. 1391(b)(3) .................................................. 33, 2a

28 U.S.C. 1391(f )...........................................3, 5, 32, 33, 2a

28 U.S.C. 1391(f )(1) ......................................... 5, 32, 33, 2a

28 U.S.C. 1391(f )(3) ........................................... 5, 6, 33, 2a

28 U.S.C. 1391(f )(4). .................................................. 33, 3a

28 U.S.C. 1441(d) ................................................... 3, 32, 3a

28 U.S.C. 1602 et seq. .................................................. 3, 3a

28 U.S.C. 1602-1611..................................................... 4, 3a

28 U.S.C. 1603(a) ......................................................... 4, 3a

28 U.S.C. 1603(b) ............................................... 4, 6, 22, 4a

28 U.S.C. 1604 .................................................. 4, 14, 24, 4a

28 U.S.C. 1605-1607.............................. 4, 10, 11, 17, 19, 5a

28 U.S.C. 1605 ............................................................ 19, 5a

28 U.S.C. 1605(a)(1) ................................................... 19, 5a

28 U.S.C. 1605(a)(2)................................................... 19, 5a

28 U.S.C. 1605(a)(3)................................................... 19, 5a

28 U.S.C. 1605(a)(4)................................................... 20, 6a

28 U.S.C. 1605(a)(5)................................................... 20, 6a

28 U.S.C. 1605(a)(6) ............................................... 4, 24, 6a

28 U.S.C. 1605(a)(6)(B) ............................................ 5-7, 6a

28 U.S.C. 1605A(a)(1) ................................................ 31, 8a

28 U.S.C. 1605A(a)(2)(A)(i)-(ii)................................. 31, 8a

28 U.S.C. 1605A(c)..................................................... 31, 9a

28 U.S.C. 1605A(h)(6).............................................. 31, 10a

28 U.S.C. 1608 ...............................................13, 15, 32, 13a

28 U.S.C. 1608(a) ..................................................... 15, 13a

28 U.S.C. 1608(b) ..................................................... 15, 14a

International Emergency Economic Powers Act,

50 U.S.C. 1701 et seq. .......................................................... 31

Trading with the Enemy Act,

50 U.S.C. 4301 et seq. .......................................................... 31

VIII

Statutes and rules—Continued:

Page

9 U.S.C. 201 .............................................................................. 3

9 U.S.C. 203 ............................................................................ 24

9 U.S.C. 204-208 ....................................................................... 3

9 U.S.C. 207 .............................................................................. 3

28 U.S.C. 455 .......................................................................... 34

Fed. R. Civ. P.:

Rule 1 ................................................................................ 34

Rule 4(k)(1)(A) ................................................................. 18

Rule 4(k)(1)(C) .....................................................................

Rule 4(k)(2) ...................................................................... 18

Miscellaneous:

Donald Earl Childress III, Novel Perspectives on

Due Process Symposium: Questioning the

Constitutional Rights of Nations,

88 Fordham L. Rev. Online 60 (2019) ............................... 27

Code of Conduct for United States Judges (2019):

Canon 3A .......................................................................... 34

Canon 3C .......................................................................... 34

Constitutionality of Closing the Palestine

Information Office, 11 Op. OLC 104 (1987) ................ 29

Magna Carta ch. 1 (1215) ................................................ 30

Max Crema et al., The Original Meaning of “Due

Process of Law” in the Fifth Amendment,

108 Va. L. Rev. 447 (2022) ............................................ 30

Lori Fisler Damrosch, Foreign States and the

Constitution, 73 Va. L. Rev. 483 (1987)............................. 28

The Federalist No. 78 (Alexander Hamilton)

(Jacob E. Cooke ed., 1961) ................................................. 34

H.R. Rep. No. 1487, 94th Cong., 2d Sess. (1976) .......... 16, 17

S. Rep. No. 1310, 94th Cong., 2d Sess. (1976) ............... 17, 33

Miscellaneous—Continued:

Page

Stephen E. Sachs, The Unlimited Jurisdiction of the

Federal Courts, 106 Va. L. Rev. 1703 (2020) ................... 19

14D Charles Alan Wright et al., Federal Practice

and Procedure (4th ed. 2024) ............................................ 33

Ingrid Wuerth, The Due Process and Other

Constitutional Rights of Foreign Nations,

88 Fordham L. Rev. 633 (2019) ......................................... 27

In the Supreme Court of the United States

No. 23-1201

CC/DEVAS (MAURITIUS) LIMITED, ET AL., PETITIONERS

ANTRIX CORP. LTD., ET AL.

No. 24-17

DEVAS MULTIMEDIA PRIVATE LIMITED, PETITIONER

ANTRIX CORP. LTD., ET AL.

ON WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

This case concerns the standard for establishing personal jurisdiction over a foreign state in a civil action in

the United States. Civil litigation against foreign sovereigns in federal and state courts can have significant

foreign-relations implications for the United States and

can affect the reciprocal treatment of the United States

in the courts of other nations. The United States thus

has a substantial interest in this case.

STATEMENT

1. a. This case arises from a contractual dispute between petitioner Devas Multimedia Private Ltd. (De(1)

vas) and respondent Antrix Corp. (respondent). Devas

is a private corporation established by a group of American investors and executives under the laws of the Republic of India. 23-1201 Pet. App. (Pet. App.) 17a, 53a.

Respondent—an Indian corporation that markets goods

and services for the Indian government’s space agencies

—is wholly owned, and has much of its leadership appointed, by the Government of India. Id. at 14a-15a, 53a.

In 2005, respondent entered into a contract with Devas (20-36024 C.A. E.R. (E.R.) 246-253) to build, launch,

and operate two communications satellites, from which

respondent would provide Devas with leased communications bandwidth that Devas would then use to provide

audio, video, and information services across India. Id.

at 246. The contract’s mandatory arbitration provision

applies to “any dispute or difference between the [p]arties” under the contract. Id. at 251-252. It provides that

any resulting arbitral decision or award “shall be final,

binding and conclusive on the Parties and entitled to be

enforced to the fullest extent permitted by Laws and

entered in any court of competent jurisdiction.” Id. at

252; see Pet. App. 18a (reproducing provision). 1

In 2011, respondent terminated the contract. Pet

App. 18a. Devas then commenced arbitration proceedings under the International Chamber of Commerce

rules of arbitration. Id. at 18a-19a. In 2015, an arbitral

panel seated in New Delhi, India, found that respondent

had “wrongfully repudiated” the contract and entered a

final arbitral award awarding Devas $562.5 million plus

interest. Id. at 20a (citation and brackets omitted); see

E.R. 54-156 (arbitral award).

The contract defines “Laws” to mean “all laws, statutes, rules,

regulations, ordinances, by-laws and other pronouncements having

the effect of law of India.” D. Ct. Doc. 2-1, at 129 (Sept. 13, 2018).

b. The United States and India are parties to the

Convention on the Recognition and Enforcement of

Foreign Arbitral Awards (New York Convention), done

June 10, 1958, 21 U.S.T. 2517, T.I.A.S. No. 6997. Both

nations have agreed under the Convention to recognize

and enforce arbitral awards concerning “commercial”

legal relationships made “in the territory of [any other]

Contracting State.” Id. Art. I(3), 21 U.S.T. 2519; see id.

note, 21 U.S.T. 2563, 2566. The Convention provides

that, with certain exceptions, each contracting state

“shall recognize arbitral awards as binding and enforce

them in accordance with the rules of procedure of the

territory where the award is relied upon.” Id. Arts. III

and V, 21 U.S.T. 2519-2520.

Congress implemented the New York Convention in

1970 by directing that the Convention “shall be enforced

in United States courts in accordance with [9 U.S.C.

201-208].” 9 U.S.C. 201. If a party to arbitration timely

applies for an order confirming an “arbitral award falling under the Convention,” a district court “shall confirm the award” unless “it finds one of the grounds

[specified in the Convention] for refusal or deferral of

recognition or enforcement of the award.” 9 U.S.C. 207.

2. In 2018, Devas petitioned the United States District Court for the Western District of Washington to

confirm the 2015 arbitral award. 20-36024 Intervenors’

C.A. Supp. E.R. (Supp. E.R.) 75-90. Devas argued that

jurisdiction and venue were proper under the Foreign

Sovereign Immunities Act of 1976 (FSIA), 28 U.S.C.

1330, 1391(f ), 1441(d), 1602 et seq. Supp. E.R. 77-78.

a. The FSIA provides “the sole basis for obtaining

jurisdiction over a foreign state in the courts of this

country.” Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434, 443 (1989). The Act’s def-

inition of “ ‘foreign state’ ” applies “[f ]or purposes of [28

U.S.C. 1602-1611]” and where otherwise incorporated

by reference, as in Section 1330. 28 U.S.C. 1603(a).

That definition includes a foreign state, “a political subdivision of a foreign state,” and “an agency or instrumentality of a foreign state.” Ibid. An “ ‘agency or instrumentality of a foreign state,’ ” in turn, is “any entity” (1) which is a “separate legal person, corporate or

otherwise”; (2) “which is an organ of a foreign state or

political subdivision thereof ” or “a majority of whose

shares or other ownership interest is owned by a foreign

state or political subdivision thereof ”; and (3) which is

“neither a citizen of a State of the United States,” “nor

created under the laws of any third country.” 28 U.S.C.

1603(b). Under the FSIA, a “foreign state” as thus defined “shall be immune from the jurisdiction” of a federal or state court in a civil action, unless that action is

expressly permitted by certain international agreements or by the FSIA’s exceptions to foreign sovereign

immunity at 28 U.S.C. 1605-1607. 28 U.S.C. 1604; see

Turkiye Halk Bankasi A.S. v. United States, 598 U.S.

264, 272-273 (2023).

As relevant here, the FSIA includes an exception to

foreign sovereign immunity, enacted in 1988, for certain

civil actions brought “either to enforce,” or “to confirm

an award made pursuant to,” “an agreement to arbitrate” that has been “made by the foreign state with or

for the benefit of a private party” with respect to “a defined legal relationship” concerning “a subject matter

capable of settlement by arbitration under the laws of

the United States.” 28 U.S.C. 1605(a)(6). That exception applies in four specified contexts, including where

“the agreement or award is or may be governed by a

treaty or other international agreement in force for the

United States calling for the recognition and enforcement of arbitral awards.” 28 U.S.C. 1605(a)(6)(B).

The FSIA’s “comprehensive statutory scheme” governing civil actions against foreign states includes provisions addressing, inter alia, federal “subject-matter

jurisdiction,” “personal jurisdiction,” and “venue.” Amerada Hess, 488 U.S. at 435 & n.3 (citation omitted).

First, 28 U.S.C. 1330(a) vests federal district courts

with “original jurisdiction without regard to amount in

controversy of any nonjury civil action against a foreign

state as defined in [S]ection 1603(a) * * * as to any claim

for relief in personam with respect to which the foreign

state is not entitled to immunity either under sections

1605-1607 of [Title 28] or under any applicable international agreement.” Ibid.

Second, 28 U.S.C. 1330(b) provides that “[p]ersonal

jurisdiction over a foreign state shall exist as to every

claim for relief over which the district courts have jurisdiction under [Section 1330](a) where service has been

made under [28 U.S.C.] 1608.” 28 U.S.C. 1330(b).

Third, the FSIA’s “carefully calibrated scheme * * *

addresses venue,’ ” Turkiye Halk Bankasi, 598 U.S. at

273, by specifying four categories of venue for “[a] civil

action against a foreign state as defined in [28 U.S.C.]

1603(a).” 28 U.S.C. 1391(f ). Venue is proper “in any

judicial district in which a substantial part of the events

or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action

is situated.” 28 U.S.C. 1391(f )(1). If the action is

against “an agency or instrumentality of a foreign

state,” venue is also proper “in any judicial district in

which the agency or instrumentality is licensed to do

business or is doing business.” 28 U.S.C. 1391(f )(3).

b. Devas alleged that respondent was an “agency or

instrumentality of a foreign state,” 28 U.S.C. 1603(b),

but that Devas’s suit fell within Section 1605(a)(6)(B)’s

exception to sovereign immunity because Devas sought

to confirm an award made pursuant to respondent’s arbitration agreement, which is governed by the New

York Convention. Supp. E.R. 77-78. Devas alleged that

subject-matter and personal jurisdiction therefore were

proper under Section 1330(a) and (b). Id. at 78. And

Devas alleged that “[v]enue is proper” in the Western

District of Washington under the FSIA’s venue provision, because respondent “engages in business in th[at]

district” by contracting with companies having headquarters in the district to sell respondent’s “satellite

launch” and “space communications services” to customers. Id. at 77-78.

Respondent moved to dismiss the petition. Respondent did not dispute that it is a “foreign state” under the

FSIA, that service had been properly made, or that the

FSIA’s arbitral exception applied. Pet. App. 4a, 21a22a, 54a. Nor did respondent dispute that it was doing

business in the district or that venue therein was thus

proper under Section 1391(f )(3). Respondent instead

argued that the Due Process Clause’s constitutional requirement for personal jurisdiction requires “ ‘minimum

contacts’ with the United States” but those contacts had

not been established. Id. at 21a-22a; see id. at 13a.

The district court denied respondent’s motion to dismiss. Pet. App. 13a-16a. The court concluded that “the

due process clause does not apply” on the ground that

“[respondent] is not a ‘person’ for due process purposes

because it is effectively controlled by the Government

of India,” which “exercises ‘plenary control’ over [respondent].” Id. at 13a-14a. The court also declined to

dismiss the action on forum-non-conveniens grounds,

stating that post-arbitral-award “investigations and

proceedings against [Devas] and its officers and agents

in India—including both civil and criminal proceedings—raise * * * concerns about the neutrality of proceedings in India.” Id. at 15a.

The district court subsequently granted Devas’s motion to confirm the arbitral award. Pet. App. 17a-35a.

The court determined that it had subject-matter jurisdiction under Section 1330(a) based on the FSIA’s arbitral exception in Section 1605(a)(6)(B). Id. at 21a. The

court further determined that personal jurisdiction

over respondent existed under Section 1330(b). Id. at

22a. After reiterating its constitutional due-process ruling, ibid., the court alternatively held that there were

“ ‘minimum contacts’ with the United States” satisfying

due process because “the parties’ entire course of dealing”

showed that “[r]espondent [had] purposely availed itself of the privilege of conducting business activities in

the United States.” Id. at 22a-25a. On the merits, the

court found no ground under the New York Convention

for refusing to confirm the award. Id. at 26a-34a. The

court confirmed the award, id. at 34a, and, in November

2020, entered a $1.294 billion judgment for Devas, which

included pre- and post-award interest, E.R. 5.

c. In January 2021, while respondent’s appeal of

that judgment was pending, the Government of India,

in a proceeding initiated by respondent, placed Devas

into liquidation and “appoint[ed] a government official”

to assume control of Devas on the ground that Devas

had fraudulently conducted its affairs. 22-35103 C.A.

E.R. 278-279. The liquidator promptly fired Devas’s

original counsel in this case. Id. at 9, 279.

Two Devas shareholder entities and a United States

subsidiary of Devas—the petitioners in No. 23-1201

(intervenors)—were then granted leave to intervene in

the district court proceedings here. 22-35103 C.A. E.R.

9, 277, 279, 287. Following discovery related to respondent’s assets, the court authorized intervenors to

Virginia, where intervenors had discovered one of respondent’s debtors, Pet. App. 40a-41a. Respondent and

Devas (then, as now, under the liquidator’s control) appealed that order. Id. at 55a.

4. a. The court of appeals consolidated the appeals

and reversed. Pet. App. 1a-12a. The appellate panel

observed that “[t]he parties agree that for purposes of

the FSIA, [respondent] is a ‘foreign state,’ service has

been made, and an enumerated exception applies.” Id.

at 4a. But the panel determined that, under binding

Ninth Circuit precedent, “[p]ersonal jurisdiction under

the FSIA requires satisfaction of the traditional minimum contacts standard” borrowed from due-process jurisprudence. Id. at 4a-5a (citation and brackets omitted). The court emphasized that its “application of the

minimum contacts analysis to actions under the FSIA

* * * is statutory rather than constitutional” and does

not reflect a determination that “a foreign state is * * *

a person” for due-process purposes. Id. at 5a. The

court explained that its precedent simply reflects a

“reading of the FSIA” that relies on “the FSIA’s legislative history” to conclude that “the FSIA was intended

to be consistent with the minimum contacts analysis.”

Ibid.

The panel further determined that the district court

had erred in alternatively ruling that “[respondent] has

the requisite minimum contacts with the United States,”

concluding that Devas had failed to “show that [respondent] purposely availed itself of the privilege of conducting activities in the United States.” Pet. App. 6a-7a.

b. Judge Miller, joined by Judge Koh, concurred.

Pet. App. 9a-12a. Judge Miller noted his agreement

that the court of appeals’ binding precedent required

application of a minimum-contacts analysis as a statutory rather than a constitutional matter, but he found

that precedent to be erroneous because “[n]othing in

[Section 1330(b)]” supports such “a minimum-contacts requirement.” Id. at 9a-10a. He explained that personal

jurisdiction exists under Section 1330(b)’s “categorical[]”

text where, as here, (1) an FSIA “exception[] to foreign

sovereign immunity” applies and (2) the foreign state

has been “properly served.” Id. at 10a (citation omitted). Judge Miller also noted his agreement with the

holdings of other courts of appeals that foreign states

do not have constitutional due-process rights. Id. at 9a.

5. The court of appeals denied rehearing en banc.

Pet. App. 42a-68a. Judge Bumatay, joined by five active

judges, dissented. Id. at 46a-68a. Judge Bumatay

stated that the “straightforward question” in this case

is whether the FSIA—“[d]espite [its] text”—requires

proof of “ ‘minimum contacts’ to assert personal jurisdiction over a foreign state.” Id. at 47a. He concluded

that nothing in Section 1330(b) requires that inquiry.

Id. at 47a-49a, 57a-62a. Judge Bumatay further stated

that “foreign states” are not entitled to “the protection

of minimum contacts under the Fifth Amendment.” Id.

at 49a; see id. at 62a-67a. He emphasized that the only

question before the court of appeals was whether “minimum contacts” must be proven to “assert personal jurisdiction over foreign states under the FSIA,” and

that, if the court had resolved that question in the neg-

ative, the case could have been “remanded to the district court” to decide any “other questions” that would

arise, such as whether respondent, as a “corporate” entity, “deserves due process protection” even if a “foreign state” like India does not. Id. at 56a & n.1. 2

SUMMARY OF ARGUMENT

I. The court of appeals erred in holding that, as a

statutory matter, the FSIA incorporates a “minimum

contacts” standard borrowed from constitutional dueprocess jurisprudence to govern personal jurisdiction

over foreign states.

A. The FSIA’s jurisdictional provision, 28 U.S.C.

1330, contains two subsections. Subsection (a) grants

district courts subject-matter jurisdiction over civil actions against foreign states as to any claim for which an

exception to foreign sovereign immunity applies under

28 U.S.C. 1605-1607. Subsection (b) then provides that

“[p]ersonal jurisdiction over a foreign state shall exist

as to every claim for relief over which the district courts

have jurisdiction under subsection (a) where service has

been made under [28 U.S.C.] 1608.” 28 U.S.C. 1330(b).

Together, those provisions supply personal jurisdiction

over a foreign state whenever (1) an FSIA exception to

immunity applies and (2) service has been properly

made. Nothing in that unambiguous text supports a

further statutory minimum-contacts requirement.

B. The court of appeals’ contrary conclusion, which

rests on legislative history, is flawed. First, legislative

history cannot be used to muddy the meaning of the

While the case was pending on appeal, an Indian court set aside

the arbitration award to Devas. See Pet. App. 55a. The courts below have not yet passed on the validity of that Indian court order or

its effect on the merits of Devas’s action.

FSIA’s clear statutory language. And second, the court

of appeals misread the pertinent committee report.

That report merely reflects the view that the FSIA’s

original exceptions to foreign sovereign immunity,

which Section 1330(b) incorporates by reference, would

themselves apply, as a practical matter, only in contexts

in which minimum jurisdictional contacts would exist.

C. Respondent contends (Br. in Opp. 16-17) that

“most” of the FSIA’s exceptions to foreign sovereign

immunity in Sections 1605 to 1607 themselves require a

sufficient “nexus to the United States” to satisfy any

due-process requirements. That is correct. But the

conclusion that various FSIA exceptions to immunity

impose requirements that by their own terms would satisfy a due process “minimum contacts” standard provides no basis for supplementing the statutory text with

a freestanding non-“statutory” minimum-contacts requirement.

II. This Court should correct the court of appeals’

judgment that the FSIA incorporates a traditional minimum contacts analysis as a statutory matter and remand for that court to consider in the first instance

whether the Fifth Amendment’s due-process requirements apply and, if so, whether they have been satisfied.

That disposition would eliminate the division of authority on the statutory question that warranted the Court’s

review. Several reasons also counsel against the Court

addressing those constitutional questions at this time in

this case.

III. A. If this Court elects to address constitutional

due process at this time, the Court should follow its

prior approach of assuming, without deciding, that a

foreign state (including an agency or instrumentality

thereof ) is a ‘person’ for purposes of the Due Process

Clause, because, even if due-process principles are applicable, personal jurisdiction over respondent is appropriate. The due-process requirement of personal jurisdiction is an individual right that may be waived or forfeited, including through express or implied consent.

And in this case, respondent consented to personal jurisdiction by agreeing to a binding arbitration provision

in its contract with Devas that provides that any arbitral award shall be entitled to be “entered in any court

of competent jurisdiction.” Pet. App. 18a. Federal district courts are courts of competent jurisdiction, and no

unfairness results from enforcing that contract according to its terms.

B. 1. If this Court elects to go still further, foreign

states themselves are not “persons” under the Fifth

Amendment’s Due Process Clause. This Court has already held that States of the Union are not “persons”

under that Clause. Foreign states have even less of a

basis to claim due-process rights. The word “person”

has not typically been understood to include sovereign

states; the relevant drafting history suggests that sovereign states are not protected by the Due Process

Clause; and the absence of any relevant role of foreign

states in our constitutional structure, as well as the perfect equality of nation states, confirm that our domestic

Constitution does not define the rights and duties of the

United States with respect to foreign sovereigns.

2. The practical implications of conferring due process rights on foreign states would have been significant. Plenary Legislative and Executive authority is

particularly important for the management of disagreements with foreign states. The Constitution therefore

leaves to the political Branches the authority to deter-

mine what appropriate process should be followed with

respect to foreign states.

3. It is critically important to the United States’ own

interest in securing reciprocal treatment by foreign

sovereigns, however, that foreign states understand

that the United States appropriately safeguards their

interests through non-constitutional means, including

through various protections in the FSIA’s comprehensive and carefully calibrated statutory framework.

ARGUMENT

I. THE FSIA DOES NOT REQUIRE A SEPARATE “MINIMUM CONTACTS” ANALYSIS TO ESTABLISH PERSONAL JURISDICTION OVER A FOREIGN STATE

The court of appeals held that—as a “statutory rather than [a] constitutional” matter—the FSIA provides

that “ ‘[p]ersonal jurisdiction’ ” over a foreign state “ ‘requires satisfaction of the traditional minimum contacts

standard’ ” borrowed from constitutional due-process

jurisprudence. Pet. App. 4a-5a (citation omitted). That

is incorrect. By statute, personal jurisdiction over a foreign state exists if (1) a statutory exception exists to foreign sovereign immunity and (2) the foreign state has

been served with process under 28 U.S.C. 1608. See 28

U.S.C. 1330(a) and (b). And because “[t]he parties

agree that for purposes of the FSIA, [respondent] is a

‘foreign state,’ service has been made, and an enumerated exception [to immunity] applies,” Pet. App. 4a, the

FSIA’s statutory prerequisites to personal jurisdiction

have been satisfied. That straightforward conclusion is

all that this Court need resolve in this case.

A. Personal Jurisdiction Exists Where An FSIA Exception

To Immunity Applies And Proper Service Is Made

The FSIA’s jurisdictional provision, 28 U.S.C. 1330,

has two subsections addressing, respectively, subjectmatter jurisdiction and personal jurisdiction. Together,

those provisions unambiguously specify that personal

jurisdiction exists over a foreign state under the FSIA

if, as is undisputed here (Pet. App. 4a), an FSIA exception to foreign sovereign immunity applies and the foreign state has been properly served.

First, Subsection (a) grants district courts “original

jurisdiction” over “any nonjury civil action against a foreign state as defined in [S]ection 1603(a)” as to “any

claim for relief in personam with respect to which the

foreign state is not entitled to immunity either under

[28 U.S.C.] 1605-1607” or “under any applicable international agreement.” 28 U.S.C. 1330(a). That “unambiguous” language confers federal “subject-matter jurisdiction” over any such action if “one of the [FSIA’s]

specified exceptions to [foreign] sovereign immunity

applies.” Verlinden B.V. v. Central Bank of Nigeria,

461 U.S. 480, 489 (1983); see id. at 493-494 & n.20. That

affirmative grant of jurisdiction “work[s] in tandem”

with 28 U.S.C. 1604, which “bars federal and state

courts from exercising jurisdiction when a foreign state

is entitled to immunity,” i.e., when no exception to immunity applies. Argentine Republic v. Amerada Hess

Shipping Corp., 488 U.S. 428, 434 (1989).

Second, Subsection (b) provides that “[p]ersonal jurisdiction over a foreign state shall exist as to every

claim for relief over which the district courts have jurisdiction under subsection (a) where service has been

made under [28 U.S.C.] 1608.” 28 U.S.C. 1330(b). The

first half of that subsection—which expressly limits

personal jurisdiction to those claims for which “jurisdiction [exists] under subsection (a),” ibid.—ensures that

“personal jurisdiction, like subject-matter jurisdiction,

exists only when one of the exceptions to foreign sovereign immunity in [Sections] 1605-1607 applies.” Amerada Hess, 488 U.S. at 435 n.3. “Thus, if none of the exceptions to sovereign immunity set forth in the Act applies, the District Court lacks both statutory subjectmatter jurisdiction and personal jurisdiction.” Verlinden, 461 U.S. at 485 n.5.

The second half of Subsection (b) further requires

that “service [must be] made under [S]ection 1608” to

establish “[p]ersonal jurisdiction” over a foreign state.

28 U.S.C. 1330(b). Section 1608, in turn, specifies the

FSIA’s hierarchy of statutorily required methods for

serving a foreign state. 28 U.S.C. 1608(a) and (b); see

Republic of Sudan v. Harrison, 587 U.S. 1, 4-5, 8-13

(2019).

It follows that Section 1330(b) “makes personal jurisdiction over a foreign state automatic when [1] an exception to immunity applies and [2] service of process

has been [properly] accomplished.” Samatar v. Yousuf,

560 U.S. 305, 324 n.20 (2010). Nothing in the FSIA’s

unambiguous text permits the imposition of any further

statutory prerequisite to personal jurisdiction, much

less a type of “minimum contacts analysis” borrowed

from due-process jurisprudence that the court of appeals imposed as a “statutory rather than [a] constitutional” matter, Pet. App. 4a-5a.

B. The FSIA’s Legislative History Provides No Basis For

An Independent “Minimum Contacts” Requirement

The court of appeals determined that its contrary

precedent rests on “a reading of the FSIA’s legislative

history” suggesting that Congress intended the FSIA

to be “consistent with the minimum contacts analysis.”

Pet. App. 5a. That reliance on legislative history is

deeply flawed for two reasons.

First, as the foregoing discussion has shown, nothing

in the FSIA’s unambiguous text imposes any separate,

freestanding requirement of “minimum contacts” between a foreign state and the United States as a predicate for personal jurisdiction over the foreign state.

That should end the interpretive inquiry. “Even those

[Members of the Court] who sometimes consult legislative history will never allow it to be used,” as here, “to

‘muddy’ the meaning of ‘clear statutory language.’ ”

Food Mktg. Inst. v. Argus Leader Media, 588 U.S. 427,

436 (2019) (citation omitted).

Second, as Judge Bumatay recognized, the Ninth

Circuit’s precedent simply misreads the legislative history. Pet. App. 48a, 60a-62a. The relevant House of

Representatives committee report that the precedent

invokes does not contemplate a freestanding “minimum

contacts” analysis that supplements the inquiries expressly specified in FSIA’s text. The report simply reflects the view that the exceptions to immunity enacted

in 1976 applied, as a practical matter, only in contexts

in which the committee believed “minimum jurisdictional contacts” would exist.

The committee report states that Section 1330(b)

“embodie[s]” the “due process requirement” of “minimum jurisdictional contacts” because it “incorporat[es]

these jurisdictional contacts by reference.” H.R. Rep.

No. 1487, 94th Cong., 2d Sess. 13 (1976) (emphasis

added). More specifically, the report states that Section

1330(b) provides for personal jurisdiction only if there

is “original jurisdiction under section 1330(a)”; that jurisdiction under Section 1330(a) exists only where the

underlying “claim [is one] for which the foreign state is

not entitled to immunity”; and that, “[s]ignificantly,

each of the immunity provisions in the bill, [S]ections

1605-1607, * * * prescribe[s] the necessary contacts

which must exist before our courts can exercise personal jurisdiction” by requiring either “some connection

between the lawsuit and the United States[] or an express or implied waiver” of immunity. Ibid. (emphasis

added); accord S. Rep. No. 1310, 94th Cong., 2d Sess. 13

(1976). The report thus reflects the view that the

FSIA’s original exceptions to foreign sovereign immunity, which Section 1330(b) incorporates by reference,

generally apply in circumstances that would constitute

minimum contacts under a due-process analysis. The

report “says nothing about a minimum-contacts analysis over and above satisfying a statutory exception” in

Sections 1605-1607. Pet. App. 61a-62a (Bumatay, J.,

dissenting). Had Congress intended to impose a requirement for a separate minimum-contacts analysis, it

would have enacted text to that effect.

C. The FSIA’s Exceptions To Foreign Sovereign Immunity

Do Not Impose An Independent Statutory “Minimum

Contacts” Requirement

1. The Court’s minimum-contacts jurisprudence has

developed under the Fourteenth Amendment, which

prohibits “any State” from “depriv[ing] any person of

life, liberty, or property, without due process of law.”

U.S. Const. Amend. XIV, § 1. Under this Court’s decisions, if a defendant is a “person” having such rights,

ibid, the Fourteenth Amendment permits “a State [to]

authorize its courts to exercise personal jurisdiction

over an out-of-state defendant” where “the defendant

has ‘certain minimum contacts with [the State] such

that the maintenance of the suit does not offend ‘tradi-

tional notions of fair play and substantial justice.’ ”

Goodyear Dunlop Tires Operations, S.A. v. Brown, 564

U.S. 915, 923 (2011) (quoting International Shoe Co. v.

Washington, 326 U.S. 310, 316 (1945)) (brackets in original). That restriction on “state [judicial] power” is

grounded in an “ ‘individual liberty interest’ ” protected

by the Due Process Clause, Burger King Corp. v.

Rudzewicz, 471 U.S. 462, 471-472 & n.13 (1985) (citation

omitted), although it also reflects the territorial “limits”

of each individual State’s authority within our “federal

system,” World-Wide Volkswagen Corp. v. Woodson,

444 U.S. 286, 292 (1980).

The Fourteenth Amendment’s limit on personal jurisdiction often applies indirectly in civil actions in federal court because, by rule, service of a summons “establishes personal jurisdiction over a defendant” who

would be “subject to the jurisdiction of a court of general jurisdiction in the [S]tate where the district court

is located,” Fed. R. Civ. P. 4(k)(1)(A). See Daimler AG

v. Bauman, 571 U.S. 117, 125 (2014). The same rule,

however, also provides that such service will, in addition, confer personal jurisdiction over a defendant

whenever (1) “authorized by a federal statute” or (2) the

underlying claim “arises under federal law” and the exercise of “jurisdiction is consistent with the United

States Constitution and laws.” Fed. R. Civ. P. 4(k)(1)(C)

and (2).

A plurality of the Court has recognized that “a defendant may in principle be subject to the jurisdiction

of the courts of the United States but not of any particular State.” J. McIntyre Mach., Ltd. v. Nicastro, 564

U.S. 873, 884 (2011). But the Court has reserved the

“question whether the Fifth Amendment imposes the

same [type of ] restrictions” as the Fourteenth Amend-

ment regarding “the exercise of personal jurisdiction by

a federal court.” Bristol-Myers Squibb Co. v. Superior

Ct., 582 U.S. 255, 269 (2017); see, e.g., Omni Capital

Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 102 n.5

(1987). Cf. Stephen E. Sachs, The Unlimited Jurisdiction of the Federal Courts, 106 Va. L. Rev. 1703, 17041710 (2020) (rejecting national-minimum-contacts rule

applied by the courts of appeals as incorrect; arguing

that Congress may authorize federal courts to exercise

personal jurisdiction over any defendant if the authorizing legislation falls within Congress’s enumerated

powers).

2. Invoking Fourteenth Amendment jurisprudence,

respondent argues (Br. in Opp. 16-17) that “most” of the

FSIA’s substantive exceptions to foreign sovereign immunity in Sections 1605 to 1607 require a sufficient

“nexus to the United States” to satisfy any due-process

requirements. We agree. Cf. Verlinden, 461 U.S. at 490

(noting that Congress enacted “substantive provisions

requiring some form of substantial contact with the

United States” in Section 1605’s original 1976 exceptions to immunity). 3 But the conclusion that exceptions

“Under the original [1976] FSIA, * * * it was generally understood that in order for immunity to be lost, there had to be some

tangible connection between the conduct of the foreign defendant

and the territory of the United States.” Price v. Socialist People's

Libyan Arab Jamahiriya, 294 F.3d 82, 89 (D.C. Cir. 2002). Thus,

although one original exception rested on a foreign state’s explicit

or implicit “waive[r]” of its immunity, 28 U.S.C. 1605(a)(1), the “normal pattern of the Act” was to “requir[e] some form of contact with

the United States” as a condition for lifting immunity. Verlinden,

461 U.S. at 490 n.15; see 28 U.S.C. 1605(a)(2) (“commercial activity”

exception requiring, at a minimum, a “direct effect in the United

States”), (3) (expropriation exception requiring that expropriated

property or property exchanged therefor is either “present in the

to immunity include text imposing requirements that by

their own terms would satisfy a due process “minimum

contacts” requirement does not provide license to supplement the statutory text with a freestanding non“statutory” minimum-contacts requirement.

II. THIS COURT SHOULD REMAND FOR THE COURT OF

APPEALS TO RESOLVE ANY QUESTIONS OF CONSTITUTIONAL DUE PROCESS IN THE FIRST INSTANCE

This Court need not go further than deciding that the

court of appeals erred in holding that the FSIA incorporates “a traditional minimum contacts analysis” as a

“statutory” matter. Pet. App. 4a-5a. Correcting that

error will eliminate the division of authority on the statutory question that warranted this Court’s review. See

id. at 59a (Bumatay, J., dissenting) (noting that conflict). Moreover, the United States agrees with respondent and Devas that “[t]he Court should not rush

to take up th[e] [additional] question” of whether—as a

“constitutional” matter—a foreign state enjoys dueprocess protections that may limit personal jurisdiction.

Br. in Opp. 20; see Devas Br. 18, 34. The Court should

instead remand to allow the court of appeals to resolve

any relevant constitutional contentions in the first instance.

The court of appeals emphasized that its “statutory”

holding did not resolve “if a foreign state is [or is] not a

person” that would be “entitled to a minimum contacts

United States” or owned or operated by a foreign state’s agency or

instrumentality “engaged in a commercial activity in the United

States”), (4) (exception for cases involving rights in either “property

in the United States” acquired by gift or succession or “immovable

property situated in the United States”), and (5) (exception for tortious personal injury, death, or property damage or loss “occurring

in the United States”).

analysis through the Constitution.” Pet. App. 5a. And

although two members of the panel expressed the view

that a “foreign state[]” is not a “ ‘person’ ” entitled to

due-process rights under the Fifth Amendment, id. at

9a (Miller, J., concurring), that observation was not the

basis for the court’s judgment, which rested on the determination that personal jurisdiction was lacking because statutorily required “minimum contacts with the

United States” had not been established, id. at 6a-8a.

The panel, and the full court if appropriate, should be

given the opportunity in the first instance to address any

Fifth Amendment constraints before this Court considers the question itself. Cutter v. Wilkinson, 544 U.S.

709, 718 n.7 (2005) (“[W]e are a court of review, not of

first view.”).

Several other reasons also counsel against addressing that constitutional question in this case at this time.

First, this Court has thus far refrained from resolving

whether or to what extent the Fourteenth Amendment’s limits on the exercise of state-court personal jurisdiction should apply under the Fifth Amendment in

federal court. See pp. 18-19, supra.4 Second, in this

case, Congress, in the exercise of its commerce and foreign affairs powers, made a judgment—both in the

FSIA and in the statute implementing the New York

Convention—concerning categories of cases that may

properly be heard in the courts of the United States.

That judgment warrants respect in addressing due proThis Court recently granted certiorari to review a Second Circuit decision holding unconstitutional under the Fifth Amendment

an Act of Congress that provides for personal jurisdiction over specified foreign entities for acts of terrorism abroad. Fuld v. Palestine

Liberation Org., 82 F.4th 74 (2023), cert. granted, Nos. 24-20, 24151 (Dec. 6, 2024).

cess in this setting, which is distinct from the cases in

which the Court has analyzed limitations on the powers

of States and state courts under the Fourteenth

Amendment. Third, the Court has not resolved whether

“a foreign state is a ‘person’ for purposes of the Due

Process Clause,” Republic of Argentina v. Weltover,

Inc., 504 U.S. 607, 619 (1992) (“[a]ssuming, without deciding,” that issue), and this Court’s resolution of that

question could have significant implications for the

United States’ exercise of its foreign affairs power.

Fourth, this case does not even involve a foreign state

itself as a party; respondent is a corporation with a legal

identity distinct from India. The question whether such

an “agency or instrumentality of a foreign state,” 28

U.S.C. 1603(b), has due process rights even if the foreign state itself does not is a further question that has

not been resolved below. Cf. Pet. App. 56a & n.1 (Bumatay, J., dissenting) (suggesting that the district court

could resolve that question after appellate resolution of

“the sole question” before the court concerning “personal jurisdiction over foreign states”). 5 These are

weighty issues that this Court should address only

where necessary and only in a case in which a court of

appeals has already resolved them, fully articulated its

relevant reasoning, and applied its legal holdings to the

facts of the case in a manner that would facilitate this

Court’s plenary review.

Some courts of appeals have determined that foreign-state agencies or instrumentalities possess due-process rights even though

foreign states do not. See, e.g., GSS Grp. Ltd. v. National Port

Auth., 680 F.3d 805, 809, 814-815 (D.C. Cir. 2012). The rationale

underlying those decisions has, however, been called into question.

Id. at 817-819 (Williams, J., joined by Randolph, J., concurring).

III. PERSONAL JURISDICTION OVER A FOREIGN STATE

IN THIS ARBITRATION CONTEXT IS CONSISTENT

WITH CONSTITUTIONAL DUE PROCESS

Even if due-process principles are applicable in this

context, personal jurisdiction over respondent is appropriate based on respondent’s arbitration agreement. If

this Court elects to address constitutional due process

at this time, therefore, the Court should follow its prior

approach of “[a]ssuming, without deciding, that a foreign state”—including an agency or instrumentality

thereof—“is a ‘person’ for purposes of the Due Process

Clause,” Weltover, 504 U.S. at 619, and should find any

due-process requirement satisfied. If the Court elects

to rule more broadly, however, it should hold that foreign states themselves are not “persons” entitled to

due-process protection under the Fifth Amendment.

A. Respondent Consented To Personal Jurisdiction In Its

Contract With Devas

The due-process “requirement of personal jurisdiction” is an “individual right” and a personal defense that

may be waived or forfeited. Insurance Corp. of Ireland

v. Compagnie des Bauxites de Guinee, 456 U.S. 694,

703-705 (1982); see Mallory v. Norfolk S. Ry., 600 U.S.

122, 144 (2023) (plurality opinion). And where a defendant’s actions are fairly understood to “amount to a legal

submission to the jurisdiction of the court, whether voluntary or not,” personal jurisdiction exists over that defendant. Insurance Corp., 456 U.S. at 704-705. As a

result, a “ ‘variety of legal arrangements [have been taken

to] represent express or implied consent’ to personal jurisdiction” of the court, including “signing a contract

with a forum selection clause.” Mallory, 600 U.S. at

145-146 & n.10 (plurality opinion) (quoting dissenting

opinion, which quotes Insurance Corp., 456 U.S. at 703);

see id. at 167 (Barrett, J., dissenting). Respondent’s

contract with Devas is such an arrangement. Under

that contract, respondent consented to personal jurisdiction in district court arbitral-award-enforcement proceedings.

“Arbitration,” of course, “is strictly ‘a matter of consent.’ ” Granite Rock Co. v. International Bhd. of

Teamsters, 561 U.S. 287, 299 (2010) (citation omitted).

Under the FSIA, disputes about the formation of an arbitration agreement are jurisdictional because an

agreement to arbitrate is a factual predicate for the

Act’s arbitral exception to a foreign state’s jurisdictional immunity from suit. 28 U.S.C. 1604, 1605(a)(6);

see LLC SPC Stileks v. Republic of Moldova, 985 F.3d

871, 877 (D.C. Cir. 2021). But where, as here, there is

no dispute that the parties consented to arbitrate,

“agreements to arbitrate are enforced according to

their terms.” Volt Info. Scis., Inc. v. Board of Trs. of

Leland Stanford Junior Univ., 489 U.S. 468, 479 (1989).

Here, respondent consented to personal jurisdiction

in this case by explicitly agreeing that any resulting arbitral award shall be binding and conclusive and shall

be entitled to be “entered in any court of competent jurisdiction,” Pet. App. 18a (quoting the contract) (emphasis added). Federal district courts are clearly courts

of competent jurisdiction by virtue of the New York

Convention, to which both India and the United States

are parties; Congress’s implementing legislation, which

grants district courts jurisdiction over proceedings falling under the Convention, 9 U.S.C. 203; and the FSIA’s

arbitral exception to the jurisdictional immunity of foreign states, 28 U.S.C. 1605(a)(6).

No unfairness results from enforcing respondent’s

contract according to its terms. Respondent is a sophis-

ticated entity that engages in complex commercial

transactions. And if respondent had desired to limit enforcement of any arbitral award resulting from that

contract to the courts of, for instance, the Republic of

India, it could have readily done so by insisting on a

more circumscribed arbitral-award provision.

This Court in C&L Enterprises, Inc. v. Citizen Band

Potawatomi Indian Tribe, 532 U.S. 411 (2001), unanimously upheld the enforcement of an arbitral award under analogous circumstances involving tribal sovereign

immunity. The Tribe in C&L Enterprises had entered

into a commercial contract containing an arbitration

provision in which the Tribe expressly agreed to the

“enforcement of [resulting] arbitral awards ‘in any

court having jurisdiction thereof.’ ” Id. at 414-415. The

contract also identified preexisting arbitration rules to

govern the arbitral proceedings, and those rules similarly provided that “ ‘the arbitration award may be entered in any federal or state court having jurisdiction

thereof.’ ” Id. at 419 (citation omitted). Oklahoma law

vested jurisdiction to enforce such arbitration agreements in “any court of competent jurisdiction of th[e]

state.” Id. at 419-420 (citation omitted). Under those

circumstances, the Court held that, through the contract’s arbitration provision, “the Tribe clearly consented to arbitration and to the enforcement of arbitral

awards in Oklahoma state court,” and thereby waived

its sovereign immunity from such a suit. Id. at 418, 423

(citation omitted).

In this case, the FSIA itself displaced respondent’s

foreign sovereign immunity from suit. But like the

Tribe in C&L Enterprises, respondent entered into a

contract expressly permitting entry of arbitral awards

in any court of competent jurisdiction, and thereby

“consented to * * * enforcement of arbitral awards in

[federal district] court.” 532 U.S. at 423. That consent

would fully support personal jurisdiction over respondent here, assuming arguendo that the Due Process

Clause applies.

B. A Foreign State Is Not A “Person” Entitled To Fifth

Amendment Due-Process Rights

The district court determined that respondent is, in

effect, a foreign state—and therefore “is not a ‘person’

for due process purposes”—because the Government of

India wholly owns, finances the activities of, and “exercises ‘plenary control’ over [respondent],” which is

“ ‘housed’ ” within Indian government agencies “ ‘for the

purposes of staffing, premises and all organizational

support.’ ” Pet. App. 13a-15a (citations omitted). The

court of appeals did not address that determination. Petitioners nevertheless renew (Intervenors Br. 30-34;

Devas Br. 35-38) their argument that foreign states do

not possess due-process rights. If this Court addresses

that argument, it is the position of the United States

that a foreign state is not entitled to protection under

the Fifth Amendment’s Due Process Clause. That

Clause provides: “nor shall any person * * * be deprived

of life, liberty, or property, without due process of law.”

U.S. Const. Amend. V. The Fifth Amendment’s text,

the broader constitutional structure, and the relevant

drafting history demonstrate that a foreign state is not

a “person” under that Clause. We do not, however, take

a position at this juncture on the ultimate application of

the Due Process Clause to an agency or instrumentality

of a foreign state. See p. 22 & n.5, supra.

1. The Framers would not have understood the word

“person” in this context to include a foreign state. To

be sure, as a purely linguistic matter, “person” could be

used in some contexts to refer to a sovereign state. See,

e.g., Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 455-456

(1793) (opinion of Wilson, J.) (describing “a State” of the

Union as “an artificial person”); id. at 472 (opinion of

Jay, C.J.) (stating that “a nation or State-sovereign is

the person or persons in whom [sovereignty] resides”);

see also Ingrid Wuerth, The Due Process and Other

Constitutional Rights of Foreign Nations, 88 Fordham

L. Rev. 633, 676-679 (2019). But see Donald Earl Childress III, Novel Perspectives on Due Process Symposium: Questioning the Constitutional Rights of Nations, 88 Fordham L. Rev. Online 60, 63-73 (2019) (disputing Professor Wureth’s analysis).

But the word “ ‘person’ ” in “common usage” has not

typically “include[d] the sovereign” and, for that reason, “statutes employing the phrase [have been] ordinarily” though not always “construed to exclude it.”

United States v. Cooper Corp., 312 U.S. 600, 604-605

(1941); see Vermont Agency of Natural Res. v. United

States ex rel. Stevens, 529 U.S. 765, 780-781 (2000). The

specific context at issue, including legal history and

structural considerations, rather than just the “literal

text” alone, is therefore important. See Alden v. Maine,

527 U.S. 706, 719-720 (1999) (interpreting Eleventh

Amendment); Cooper Corp., 312 U.S. at 605 (emphasizing that “subject matter” and “context” inform the

proper interpretation).

The context here provides a clear answer. This

Court has already held that “[t]he word ‘person’ in the

context of the Due Process Clause of the Fifth Amendment cannot, by any reasonable mode of interpretation,

be expanded to encompass the States of the Union.”

South Carolina v. Katzenbach, 383 U.S. 301, 323 (1966).

And foreign states have even less of a basis than States

to claim due-process rights.

The “ ‘constitutional structure’ ” and the lack of any

relevant role of foreign states “in the constitutional

plan” is significant. See PennEast Pipeline Co. v. New

Jersey, 594 U.S. 482, 505-506 (2021) (citation omitted).

Unlike States and the United States itself, “[t]he foreign State lies outside the structure of the Union.”

Principality of Monaco v. Mississippi, 292 U.S. 313,

330 (1934). Foreign states, unlike the States, have accepted “no general obligation to abide by the constitutional norms.” Lori Fisler Damrosch, Foreign States

and the Constitution, 73 Va. L. Rev. 483, 522 (1987).

“[N]or are there any effective means to place [them] on

parity with the United States or the [S]tates for purposes of enforcement of particular norms.” Ibid. And

because a foreign state’s reciprocal treatment of the

United States is neither prescribed in our domestic

charter nor could be guaranteed if it were, the Framers

would have had no reason to impose constitutional limits on the United States’ own authority to deal with foreign states—limits which would have been effectively

unalterable by the political Branches vested with our

Nation’s national-security and foreign-affairs authority.

Furthermore, the United States’ “powers of external

sovereignty,” including the power to determine “diplomatic relations” with foreign states, are “necessary concomitants of nationality” embodied in “the law of nations,” which do “not depend upon affirmative grants of

the Constitution.” United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936). The Constitution

merely distributes that inherent authority among the

political Branches. And “[a]s a member of the family of

nations, the right and power of the United States in that

field are equal to the right and power of the other members of the international family.” Ibid. This Court thus

recognized early in our Nation’s history that sovereign

nations “possess[] equal rights and equal independence” on the world stage, emphasizing that this “perfect

equality and absolute independence” mean that “[o]ne

sovereign [is] in no respect amenable to another.” The

Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch)

116, 136-137 (1812). The fact that “no sovereign is ‘amenable,’ or subject to the other,” means that “ ‘the rights

and duties of the United States and foreign sovereignties vis-a-vis one another derive not from the domestic

law of either, but from the mutual agreements contained

in treaties and the consensus known as customary international law.’ ” Constitutionality of Closing the Palestine Information Office, 11 Op. OLC 104, 107 (1987)

(citation omitted). In the context of actions authorized

and taken by the political Branches against foreign

states, the United States’ position has thus been that

“foreign states,” unlike foreign nationals physically present in United States territory, “have no constitutional

rights.” Id. at 107 n.2.

The Fifth Amendment’s drafting history, though

sparse, also reflects that foreign states do not have constitutional due-process rights. In 1215, Magna Carta

granted rights to each “Freeman” in England similar to

the right to life, liberty, and property later safeguarded

by the Due Process Clause. Pacific Mut. Life Ins. Co.

v. Haslip, 499 U.S. 1, 28 (1991) (Scalia, J., concurring in

the judgment) (citation omitted). By 1354, a statute of

King Edward III, which appears merely to restate

those protections, had substituted “due process of the

law” for the original “the Law of the Land.” See ibid.

(citations omitted). Sir Edward Coke, with whom “[t]he

American Colonists were intimately familiar,” thus determined that “the phrase ‘due process of law’ referred

to the customary procedures to which freemen were entitled by ‘the old law of England.’ ” Id. at 28-29 (citation

omitted). This Court later agreed, concluding that the

Fifth Amendment’s use of “the words ‘due process of

law’ conveyed ‘the same meaning as the words “by the

law of the land,” in Magna Charta.’ ” Id. at 29 (quoting

Murray’s Lessee v. Hoboken Land & Improvement Co.,

59 U.S. (18 How.) 272, 276 (1856)); see Kerry v. Din, 576

U.S. 86, 91 (2015) (plurality opinion).

Significantly, the rights of “freemen” throughout

Magna Carta were rights granted to “the freemen of

our realm,” i.e., of England. Magna Carta ch. 1 (1215)

(emphasis added). Due-process antecedents in state

constitutions likewise granted such rights to either

“freem[e]n” or “subject[s].” Haslip, 499 U.S. at 29 (citations omitted). The proposed text of the Fifth Amendment paralleled that language, initially providing dueprocess rights to any “Freeman” before the term was

changed to “person.” Max Crema et al., The Original

Meaning of “Due Process of Law” in the Fifth Amendment, 108 Va. L. Rev. 447, 508 & n.257 (2022). The records of the Fifth Amendment’s ratification, however,

contain no “comment on [the Due Process] Clause.” Id.

at 507.

2. The practical implications of conferring due process rights on foreign states would have been significant. In our system of separated federal powers, the

political Branches exercise “authority over the Nation’s

foreign relations,” “a domain in which the[ir] controlling

role * * * is both necessary and proper.” Bank Markazi

v. Peterson, 578 U.S. 212, 234-235 (2016). Indeed, this

Court has repeatedly concluded that “matters relating

‘to the conduct of foreign relations . . . are so exclusively

entrusted to the political branches of government as to

be largely immune from judicial inquiry or interference.” Haig v. Agee, 453 U.S. 280, 292 (1981) (citation

omitted); see, e.g., Hernandez v. Mesa, 589 U.S. 93, 104

(2020); Regan v. Wald, 468 U.S. 222, 243 (1984).

That Legislative and Executive authority is particularly critical for the management of disagreements with

foreign states. For example, “[i]n furtherance of their

authority over the Nation’s foreign relations, Congress

and the President have, time and again, as exigencies

arose, exercised control over claims against foreign

states and the disposition of foreign-state property in

the United States” by, for instance, “blocking [foreignstate assets] or governing their availability for attachment.” Bank Markazi, 578 U.S. at 235. Such actions

can provide the President an important “ ‘bargaining

chip’ ” to use when “negotiating the resolution” of conflicts with hostile states. Dames & Moore v. Regan, 453

U.S. 654, 673 (1981). See, e.g., International Emergency

Economic Powers Act, 50 U.S.C. 1701 et seq.; Trading

with the Enemy Act, 50 U.S.C. 4301 et seq. Congress

also amended the FSIA in 2008 to withdraw the immunity of any foreign state that the Executive Branch has

designated as “a state sponsor of terrorism” from

claims based on acts of terrorism that injure or kill

Americans, United States military personnel, or United

States government employees or contractors anywhere

in the world. 28 U.S.C. 1605A(a)(1), (2)(A)(i)-(ii), (c),

and (h)(6). The exercise of such authority by the political Branches with respect to foreign states should not

be constrained, much less undermined, by a foreign

state’s claims of constitutionally insufficient process.

The Constitution instead leaves it to the political

Branches to determine what appropriate process should

be followed with respect to foreign states. Those decisions are properly influenced by principles of comity

and reciprocity as well as the framework of international law.

3. At the same time, it is critically important to the

United States’ own interest in securing reciprocal treatment by foreign sovereigns that foreign states understand that the United States appropriately safeguards

their interests through non-constitutional means.

For example, although “foreign sovereign immunity

is a matter of grace and comity on the part of the United

States,” the FSIA confirms the immunity of foreign

states by default and generally adheres to the restrictive theory of sovereign immunity by providing tailored

exceptions that typically permit suit against foreign

states based on claims involving “some form of substantial contact with the United States.” Verlinden, 461

U.S. at 486, 490 & n.15. The FSIA then supplements

those circumscribed exceptions within a “comprehensive statutory scheme” for civil actions against foreign

states by addressing significant procedural matters

such as the proper method of service to provide the foreign state adequate notice, the foreign state’s right of

“removal,” and appropriate “venue[s]” for such actions.

Amerada Hess, 488 U.S. at 435 n.3; see, e.g., 28 U.S.C.

1391(f ), 1441(d), 1608. The “venue provisions” set forth

in the FSIA’s “carefully calibrated scheme,” Turkiye

Halk Bankasi A.S. v. United States, 598 U.S. 264, 273

(2023), for instance, logically provide for venue in the

district where “a substantial part” of the conduct underlying a claim occurred or where a “substantial part of

property” at issue is situated. 28 U.S.C. 1391(f )(1).

Venue for actions “against a foreign state” itself or a

“political subdivision thereof ” is also proper in the District of Columbia, 28 U.S.C. 1391(f )(4), “where it may

be easiest for [it] to defend” and where many “have diplomatic representatives.” S. Rep. No. 1310, 94th Cong.,

2d Sess. 31 (1976). And in an action against “an agency

or instrumentality of a foreign state,” the FSIA also

provides for venue in a district in which the agency or

instrumentality is “licensed to do business or is doing

business.” 28 U.S.C. 1391(f )(3). 6

Of course, if a foreign state is made a party to federal

litigation, it is entitled to a fair adjudicatory process.

Even before the Fifth Amendment was ratified, it was

understood that the Constitution’s grant of federal “judicial Power,” U.S. Const. Art. III, § 1, did not permit

federal courts to exercise “arbitrary” power over litigants and, instead, required the impartial adjudicatory

application of “rules and precedents” that “define and

point out [the judge’s] duty in every particular case.”

In 2011, Congress enacted 1391(b)’s three “[g]eneral” venue provisions. 28 U.S.C. 1391(b) (capitalization altered). The text of one

of those provisions is materially identical to the FSIA’s first venue

provision. See 28 U.S.C. 1391(b)(2) and (f )(1). The last of the three

general provisions is a catchall, providing that venue is proper in

“any judicial district” in which there is “personal jurisdiction” over

a defendant if no district exists in which the action may otherwise

be brought “as provided in this section.” 28 U.S.C. 1391(b)(3). Cf.

28 U.S.C. 1330(b) (conferring personal jurisdiction over foreign

states without regard to venue’s location). The government argued

in one case that Section 1391(b)(3) applies to FSIA actions, but the

court did not reach that contention. See Corporacion Mexicana de

Mantenimiento Integral v. Pemex-Exploracion y Produccion, 832

F.3d 92, 104 (2d Cir. 2016); cf. 14D Charles Alan Wright et al., Federal Practice and Procedure § 3803, at 48 & n.9 (4th ed. 2013) (noting the “important question” whether “special venue provisions”

like the FSIA’s Section 1391(f ) “displace” Section 1391(b)).

See Missouri v. Jenkins, 515 U.S. 70, 128-129 (1995)

(Thomas, J, concurring) (quoting The Federalist No. 78,

at 529 (Alexander Hamilton) (Jacob E. Cooke ed.,

1961)). Non-constitutional provisions governing federal

adjudication likewise ensure that a foreign state is

treated fairly in federal court. See, e.g., Fed. R. Civ. P.

1 (rules apply in “all civil actions and proceedings” in

district court); see also, e.g., 28 U.S.C. 455; Code of Conduct for United States Judges, Canon 3A and 3C (2019).

Just as federal adjudication remains eminently fair to

our own States, such adjudication is similarly fair to the

foreign states that may be sued under the FSIA.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

MARGARET L. TAYLOR

Legal Adviser

Department of State

DECEMBER 2024

ELIZABETH B. PRELOGAR

Solicitor General

EDWIN S. KNEEDLER

Deputy Solicitor General

ANTHONY A. YANG

Assistant to the Solicitor

General

SHARON SWINGLE

LEWIS S. YELIN

Attorneys

APPENDIX

TABLE OF CONTENTS

Page

Statutes:

28 U.S.C. 1330 ................................................................ 1a

28 U.S.C. 1391 ................................................................ 1a

28 U.S.C. 1441 ................................................................ 3a

Chapter 97 of Title 28, U.S. Code ................................. 3a

28 U.S.C. 1603 ........................................................... 3a

28 U.S.C. 1604 ........................................................... 4a

28 U.S.C. 1605 ........................................................... 5a

28 U.S.C. 1605A ......................................................... 8a

28 U.S.C. 1605B ....................................................... 11a

28 U.S.C. 1606 ......................................................... 12a

28 U.S.C. 1607 ......................................................... 12a

28 U.S.C. 1608 ......................................................... 13a

28 U.S.C. 1609 ......................................................... 16a

28 U.S.C. 1610 ......................................................... 16a

28 U.S.C. 1611 ......................................................... 22a

APPENDIX

28 U.S.C. 1330 provides:

Actions against foreign states

(a) The district courts shall have original jurisdiction without regard to amount in controversy of any nonjury civil action against a foreign state as defined in section 1603(a) of this title as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity either under sections 1605-1607 of this

title or under any applicable international agreement.

(b) Personal jurisdiction over a foreign state shall

exist as to every claim for relief over which the district

courts have jurisdiction under subsection (a) where service has been made under section 1608 of this title.

by a foreign state does not confer personal jurisdiction

with respect to any claim for relief not arising out of any

transaction or occurrence enumerated in sections 16051607 of this title.

28 U.S.C. 1391 provides in pertinent part:

Venue generally

(a) APPLICABILITY OF SECTION.—Except as otherwise provided by law—

(1) this section shall govern the venue of all civil

actions brought in district courts of the United States;

and

(2) the proper venue for a civil action shall be determined without regard to whether the action is local or transitory in nature.

(1a)

(b) VENUE IN GENERAL.—A civil action may be

brought in—

(1) a judicial district in which any defendant resides, if all defendants are residents of the State in

which the district is located;

(2) a judicial district in which a substantial part

of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the

subject of the action is situated; or

(3) if there is no district in which an action may

otherwise be brought as provided in this section, any

judicial district in which any defendant is subject to

the court’s personal jurisdiction with respect to such

action.

* * * * *

(f ) CIVIL ACTION AGAINST A FOREIGN STATE.—A

civil action against a foreign state as defined in section

1603(a) of this title may be brought—

(1) in any judicial district in which a substantial

part of the events or omissions giving rise to the

claim occurred, or a substantial part of property that

is the subject of the action is situated;

(2) in any judicial district in which the vessel or

cargo of a foreign state is situated, if the claim is asserted under section 1605(b) of this title;

(3) in any judicial district in which the agency or

instrumentality is licensed to do business or is doing

business, if the action is brought against an agency

or instrumentality of a foreign state as defined in

section 1603(b) of this title; or

(4) in the United States District Court for the

District of Columbia if the action is brought against

a foreign state or political subdivision thereof.

* * * * *

28 U.S.C. 1441 provides in pertinent part:

Removal of civil actions

* * * * *

(d) ACTIONS AGAINST FOREIGN STATES.—Any civil

action brought in a State court against a foreign state

as defined in section 1603(a) of this title may be removed by the foreign state to the district court of the

United States for the district and division embracing

the place where such action is pending. Upon removal

the action shall be tried by the court without jury.

Where removal is based upon this subsection, the time

limitations of section 1446(b) of this chapter may be enlarged at any time for cause shown.

* * * * *

4. Chapter 97 of Title 28 of the United States Code,

28 U.S.C. 1602-1611, provides in pertinent part:

* * * * *

§ 1603. Definitions

For purposes of this chapter—

(a) A ‘‘foreign state’’, except as used in section

1608 of this title, includes a political subdivision of a

foreign state or an agency or instrumentality of a foreign state as defined in subsection (b).

(b) An ‘‘agency or instrumentality of a foreign

state’’ means any entity—

(1) which is a separate legal person, corporate

or otherwise, and

(2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose

shares or other ownership interest is owned by a

foreign state or political subdivision thereof, and

(3) which is neither a citizen of a State of the

United States as defined in section 1332 (c) and

(e) of this title, nor created under the laws of any

third country.

waters, continental or insular, subject to the jurisdiction of the United States.

(d) A ‘‘commercial activity’’ means either a regular course of commercial conduct or a particular commercial transaction or act. The commercial character of an activity shall be determined by reference to

the nature of the course of conduct or particular

transaction or act, rather than by reference to its

purpose.

(e) A ‘‘commercial activity carried on in the

United States by a foreign state’’ means commercial

activity carried on by such state and having substantial contact with the United States.

§ 1604. Immunity of a foreign state from jurisdiction

Subject to existing international agreements to which

the United States is a party at the time of enactment of

this Act a foreign state shall be immune from the juris-

diction of the courts of the United States and of the

States except as provided in sections 1605 to 1607 of this

chapter.

§ 1605. General exceptions to the jurisdictional immunity of a foreign state

(a ) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States

in any case—

(1) in which the foreign state has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of the waiver which the foreign state may purport to effect except in accordance

with the terms of the waiver;

(2) in which the action is based upon a commercial activity carried on in the United States by the

foreign state; or upon an act performed in the United

States in connection with a commercial activity of the

foreign state elsewhere; or upon an act outside the

territory of the United States in connection with a

commercial activity of the foreign state elsewhere and

that act causes a direct effect in the United States;

(3) in which rights in property taken in violation

of international law are in issue and that property or

any property exchanged for such property is present

in the United States in connection with a commercial

activity carried on in the United States by the foreign state; or that property or any property exchanged for such property is owned or operated by

an agency or instrumentality of the foreign state and

that agency or instrumentality is engaged in a commercial activity in the United States;

(4) in which rights in property in the United States

acquired by succession or gift or rights in immovable

property situated in the United States are in issue;

(5) not otherwise encompassed in paragraph (2)

above, in which money damages are sought against a

foreign state for personal injury or death, or damage

to or loss of property, occurring in the United States

and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign

state while acting within the scope of his office or employment; except this paragraph shall not apply to—

(A) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused, or

(B) any claim arising out of malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights;

(6) in which the action is brought, either to enforce

an agreement made by the foreign state with or for

the benefit of a private party to submit to arbitration

all or any differences which have arisen or which may

arise between the parties with respect to a defined

legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration under the laws of the United States, or to

confirm an award made pursuant to such an agreement to arbitrate, if (A) the arbitration takes place

or is intended to take place in the United States,

(B) the agreement or award is or may be governed

by a treaty or other international agreement in force

for the United States calling for the recognition and

enforcement of arbitral awards, (C) the underlying

claim, save for the agreement to arbitrate, could have

been brought in a United States court under this section or section 1607, or (D) paragraph (1) of this subsection is otherwise applicable.

(b) A foreign state shall not be immune from the jurisdiction of the courts of the United States in any case

in which a suit in admiralty is brought to enforce a maritime lien against a vessel or cargo of the foreign state,

which maritime lien is based upon a commercial activity

of the foreign state: Provided, That—

(1) notice of the suit is given by delivery of a copy

of the summons and of the complaint to the person,

or his agent, having possession of the vessel or cargo

against which the maritime lien is asserted; and if the

vessel or cargo is arrested pursuant to process obtained on behalf of the party bringing the suit, the service of process of arrest shall be deemed to constitute

valid delivery of such notice, but the party bringing

the suit shall be liable for any damages sustained by

the foreign state as a result of the arrest if the party

bringing the suit had actual or constructive knowledge

that the vessel or cargo of a foreign state was involved; and

(2) notice to the foreign state of the commencement of suit as provided in section 1608 of this title

is initiated within ten days either of the delivery of

notice as provided in paragraph (1) of this subsection

or, in the case of a party who was unaware that the

vessel or cargo of a foreign state was involved, of the

date such party determined the existence of the foreign state’s interest.

* * * * *

§ 1605A. Terrorism exception to the jurisdictional immunity of a foreign state

(a ) IN GENERAL.—

(1) NO IMMUNITY.—A foreign state shall not be

immune from the jurisdiction of courts of the United

States or of the States in any case not otherwise covered by this chapter in which money damages are

sought against a foreign state for personal injury or

death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the

provision of material support or resources for such

an act if such act or provision of material support or

resources is engaged in by an official, employee, or

agent of such foreign state while acting within the

scope of his or her office, employment, or agency.

(2) CLAIM HEARD.—The court shall hear a claim

under this section if—

(A)(i)(I) the foreign state was designated as a

state sponsor of terrorism at the time the act described in paragraph (1) occurred, or was so designated as a result of such act, and, subject to subclause (II), either remains so designated when the

claim is filed under this section or was so designated

within the 6-month period before the claim is filed

under this section; * * *

* * * * *

(ii) the claimant or the victim was, at the time

the act described in paragraph (1) occurred—

(I)

a national of the United States;

(II)

a member of the armed forces; or

(III) otherwise an employee of the Government of the United States, or of an individual performing a contract awarded by the United States

Government, acting within the scope of the employee’s employment; and

(iii) in a case in which the act occurred in the

foreign state against which the claim has been

brought, the claimant has afforded the foreign

state a reasonable opportunity to arbitrate the

claim in accordance with the accepted international rules of arbitration; * * * [.]

* * * * *

(b ) LIMITATIONS.—An action may be brought or maintained under this section if the action is commenced, or a

related action was commenced under section 1605(a)(7)

(before the date of the enactment of this section) or section 589 of the Foreign Operations, Export Financing,

and Related Programs Appropriations Act, 1997 (as

contained in section 101(c) of division A of Public Law

104-208) not later than the latter of—

(1) 10 years after April 24, 1996; or

(2) 10 years after the date on which the cause of

action arose.

(c ) PRIVATE RIGHT OF ACTION.—A foreign state that

is or was a state sponsor of terrorism as described in

subsection (a)(2)(A)(i), and any official, employee, or

agent of that foreign state while acting within the scope

of his or her office, employment, or agency, shall be liable to—

(1) a national of the United States,

(2) a member of the armed forces,

10a

(3) an employee of the Government of the United

States, or of an individual performing a contract

awarded by the United States Government, acting

within the scope of the employee’s employment, or

(4) the legal representative of a person described

in paragraph (1), (2), or (3),

for personal injury or death caused by acts described in

subsection (a)(1) of that foreign state, or of an official,

employee, or agent of that foreign state, for which the

courts of the United States may maintain jurisdiction

under this section for money damages. In any such action, damages may include economic damages, solatium,

pain and suffering, and punitive damages. In any such

action, a foreign state shall be vicariously liable for the

acts of its officials, employees, or agents.

(d) ADDITIONAL DAMAGES.—After an action has been

brought under subsection (c), actions may also be brought

for reasonably foreseeable property loss, whether insured or uninsured, third party liability, and loss claims

under life and property insurance policies, by reason of

the same acts on which the action under subsection (c)

is based.

* * * * *

(h) DEFINITIONS.— For purposes of this section—

* * * * *

(6) the term ‘‘state sponsor of terrorism’’ means

a country the government of which the Secretary of

State has determined, for purposes of section 6( j) of

the Export Administration Act of 1979 (50 U.S.C.

App. 2405( j)), 1 section 620A of the Foreign Assis5F

See References in Text note below.

11a

tance Act of 1961 (22 U.S.C. 2371), section 40 of the

Arms Export Control Act (22 U.S.C. 2780), or any

other provision of law, is a government that has repeatedly provided support for acts of international

terrorism; and

* * * * *

§ 1605B. Responsibility of foreign states for international terrorism against the United States

(a ) DEFINITION.—In this section, the term ‘‘international terrorism’’—

(1) has the meaning given the term in section

2331 of title 18, United States Code; and

(2) does not include any act of war (as defined in

that section).

(b) RESPONSIBILITY OF FOREIGN STATES.—A foreign state shall not be immune from the jurisdiction of

the courts of the United States in any case in which

money damages are sought against a foreign state for

physical injury to person or property or death occurring

in the United States and caused by—

(1) an act of international terrorism in the United

States; and

(2) a tortious act or acts of the foreign state, or of

any official, employee, or agent of that foreign state

while acting within the scope of his or her office, employment, or agency, regardless where the tortious

act or acts of the foreign state occurred.

* * * * *

(d) RULE OF CONSTRUCTION.—A foreign state shall

not be subject to the jurisdiction of the courts of the

12a

United States under subsection (b) on the basis of an

omission or a tortious act or acts that constitute mere

negligence.

§ 1606. Extent of liability

As to any claim for relief with respect to which a foreign state is not entitled to immunity under section 1605

or 1607 of this chapter, the foreign state shall be liable

in the same manner and to the same extent as a private

individual under like circumstances; but a foreign state

except for an agency or instrumentality thereof shall

not be liable for punitive damages; if, however, in any

case wherein death was caused, the law of the place

where the action or omission occurred provides, or has

been construed to provide, for damages only punitive in

nature, the foreign state shall be liable for actual or

compensatory damages measured by the pecuniary injuries resulting from such death which were incurred by

the persons for whose benefit the action was brought.

§ 1607. Counterclaims

In any action brought by a foreign state, or in which

a foreign state intervenes, in a court of the United States

or of a State, the foreign state shall not be accorded immunity with respect to any counterclaim—

(a) for which a foreign state would not be entitled

to immunity under section 1605 or 1605A of this chapter had such claim been brought in a separate action

against the foreign state; or

(b) arising out of the transaction or occurrence

that is the subject matter of the claim of the foreign

state; or

13a

seek relief exceeding in amount or differing in kind

from that sought by the foreign state.

§ 1608. Service; time to answer; default

(a) Service in the courts of the United States and of

the States shall be made upon a foreign state or political

subdivision of a foreign state:

(1) by delivery of a copy of the summons and

complaint in accordance with any special arrangement for service between the plaintiff and the foreign state or political subdivision; or

(2) if no special arrangement exists, by delivery

of a copy of the summons and complaint in accordance with an applicable international convention on

service of judicial documents; or

(3) if service cannot be made under paragraphs

(1) or (2), by sending a copy of the summons and complaint and a notice of suit, together with a translation

of each into the official language of the foreign state,

by any form of mail requiring a signed receipt, to be

addressed and dispatched by the clerk of the court to

the head of the ministry of foreign affairs of the foreign state concerned, or

(4) if service cannot be made within 30 days under paragraph (3), by sending two copies of the summons and complaint and a notice of suit, together

with a translation of each into the official language of

the foreign state, by any form of mail requiring a

signed receipt, to be addressed and dispatched by

the clerk of the court to the Secretary of State in

Washington, District of Columbia, to the attention of

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the Director of Special Consular Services—and the

Secretary shall transmit one copy of the papers

through diplomatic channels to the foreign state and

shall send to the clerk of the court a certified copy of

the diplomatic note indicating when the papers were

transmitted.

As used in this subsection, a ‘‘notice of suit’’ shall mean

a notice addressed to a foreign state and in a form prescribed by the Secretary of State by regulation.

(b) Service in the courts of the United States and of

the States shall be made upon an agency or instrumentality of a foreign state:

(1) by delivery of a copy of the summons and complaint in accordance with any special arrangement

for service between the plaintiff and the agency or

instrumentality; or

(2) if no special arrangement exists, by delivery

of a copy of the summons and complaint either to an

officer, a managing or general agent, or to any other

agent authorized by appointment or by law to receive

service of process in the United States; or in accordance with an applicable international convention on

service of judicial documents; or

(3) if service cannot be made under paragraphs

(1) or (2), and if reasonably calculated to give actual

notice, by delivery of a copy of the summons and

complaint, together with a translation of each into

the official language of the foreign state—

(A) as directed by an authority of the foreign

state or political subdivision in response to a letter rogatory or request or

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(B) by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk

of the court to the agency or instrumentality to be

served, or

with the law of the place where service is to be

made.

(1) in the case of service under subsection (a)(4),

as of the date of transmittal indicated in the certified

copy of the diplomatic note; and

(2) in any other case under this section, as of the

date of receipt indicated in the certification, signed

and returned postal receipt, or other proof of service

applicable to the method of service employed.

(d) In any action brought in a court of the United

States or of a State, a foreign state, a political subdivision thereof, or an agency or instrumentality of a foreign state shall serve an answer or other responsive

pleading to the complaint within sixty days after service

has been made under this section.

(e) No judgment by default shall be entered by a

court of the United States or of a State against a foreign

state, a political subdivision thereof, or an agency or instrumentality of a foreign state, unless the claimant establishes his claim or right to relief by evidence satisfactory to the court. A copy of any such default judgment shall be sent to the foreign state or political subdivision in the manner prescribed for service in this section.

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§ 1609. Immunity from attachment and execution of property of a foreign state

Subject to existing international agreements to

which the United States is a party at the time of enactment of this Act the property in the United States of a

foreign state shall be immune from attachment arrest

and execution except as provided in sections 1610 and

1611 of this chapter.

§ 1610. Exceptions to the immunity from attachment or

execution

(a) The property in the United States of a foreign

state, as defined in section 1603(a) of this chapter, used

for a commercial activity in the United States, shall not

be immune from attachment in aid of execution, or from

execution, upon a judgment entered by a court of the

United States or of a State after the effective date of

this Act, if—

(1) the foreign state has waived its immunity from

attachment in aid of execution or from execution either explicitly or by implication, notwithstanding any

withdrawal of the waiver the foreign state may purport to effect except in accordance with the terms of

the waiver, or

(2) the property is or was used for the commercial activity upon which the claim is based, or

(3) the execution relates to a judgment establishing rights in property which has been taken in violation of international law or which has been exchanged

for property taken in violation of international law,

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(4) the execution relates to a judgment establishing rights in property—

(A) which is acquired by succession or gift, or

(B) which is immovable and situated in the United States: Provided, That such property is not

used for purposes of maintaining a diplomatic or

consular mission or the residence of the Chief of

such mission, or

(5) the property consists of any contractual obligation or any proceeds from such a contractual obligation to indemnify or hold harmless the foreign

state or its employees under a policy of automobile

or other liability or casualty insurance covering the

claim which merged into the judgment, or

(6) the judgment is based on an order confirming

an arbitral award rendered against the foreign state,

provided that attachment in aid of execution, or execution, would not be inconsistent with any provision

in the arbitral agreement, or

(7) the judgment relates to a claim for which the

foreign state is not immune under section 1605A or

section 1605(a)(7) (as such section was in effect on

January 27, 2008), regardless of whether the property is or was involved with the act upon which the

claim is based.

(b) In addition to subsection (a), any property in the

United States of an agency or instrumentality of a foreign state engaged in commercial activity in the United

States shall not be immune from attachment in aid of

execution, or from execution, upon a judgment entered

by a court of the United States or of a State after the

effective date of this Act, if—

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(1) the agency or instrumentality has waived its

immunity from attachment in aid of execution or from

execution either explicitly or implicitly, notwithstanding any withdrawal of the waiver the agency or instrumentality may purport to effect except in accordance

with the terms of the waiver, or

(2) the judgment relates to a claim for which the

agency or instrumentality is not immune by virtue of

section 1605(a)(2), (3), or (5) or 1605(b) of this chapter, regardless of whether the property is or was involved in the act upon which the claim is based, or

(3) the judgment relates to a claim for which the

agency or instrumentality is not immune by virtue of

section 1605A of this chapter or section 1605(a)(7) of

this chapter (as such section was in effect on January

27, 2008), regardless of whether the property is or

was involved in the act upon which the claim is based.

(c) No attachment or execution referred to in subsections (a) and (b) of this section shall be permitted until the court has ordered such attachment and execution

after having determined that a reasonable period of time

has elapsed following the entry of judgment and the giving of any notice required under section 1608(e) of this

chapter.

(d) The property of a foreign state, as defined in section 1603(a) of this chapter, used for a commercial activity in the United States, shall not be immune from attachment prior to the entry of judgment in any action

brought in a court of the United States or of a State, or

prior to the elapse of the period of time provided in subsection (c) of this section, if—

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(1) the foreign state has explicitly waived its immunity from attachment prior to judgment, notwithstanding any withdrawal of the waiver the foreign

state may purport to effect except in accordance with

the terms of the waiver, and

(2) the purpose of the attachment is to secure satisfaction of a judgment that has been or may ultimately be entered against the foreign state, and not

to obtain jurisdiction.

(e) The vessels of a foreign state shall not be immune

from arrest in rem, interlocutory sale, and execution in

actions brought to foreclose a preferred mortgage as

provided in section 1605(d).

(f )(1)(A) Notwithstanding any other provision of

law, including but not limited to section 208(f ) of the

Foreign Missions Act (22 U.S.C. 4308(f )), and except as

provided in subparagraph (B), any property with respect

to which financial transactions are prohibited or regulated pursuant to section 5(b) of the Trading with the

Enemy Act (50 U.S.C. App. 5(b)), 1 section 620(a) of the

Foreign Assistance Act of 1961 (22 U.S.C. 2370(a)), sections 202 and 203 of the International Emergency Economic Powers Act (50 U.S.C. 1701-1702), or any other

proclamation, order, regulation, or license issued pursuant thereto, shall be subject to execution or attachment in aid of execution of any judgment relating to a

claim for which a foreign state (including any agency or

instrumentality or such state) claiming such property is

not immune under section 1605(a)(7) (as in effect before

the enactment of section 1605A) or section 1605A.

See References in Text note below.

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(B) Subparagraph (A) shall not apply if, at the time

the property is expropriated or seized by the foreign

state, the property has been held in title by a natural

person or, if held in trust, has been held for the benefit

of a natural person or persons.

(2)(A) At the request of any party in whose favor a

judgment has been issued with respect to a claim for

which the foreign state is not immune under section

1605(a)(7) (as in effect before the enactment of section

1605A) or section 1605A, the Secretary of the Treasury

and the Secretary of State should make every effort to

fully, promptly, and effectively assist any judgment

creditor or any court that has issued any such judgment

in identifying, locating, and executing against the property of that foreign state or any agency or instrumentality of such state.

(B) In providing such assistance, the Secretaries—

(i) may provide such information to the court under seal; and

(ii) should make every effort to provide the information in a manner sufficient to allow the court to

direct the United States Marshall’s office to

promptly and effectively execute against that property.

(3) WAIVER.—The President may waive any provision of paragraph (1) in the interest of national security.

(g) PROPERTY IN CERTAIN ACTIONS .—

(1) IN GENERAL.—Subject to paragraph (3), the

property of a foreign state against which a judgment is

entered under section 1605A, and the property of an

agency or instrumentality of such a state, including

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property that is a separate juridical entity or is an interest held directly or indirectly in a separate juridical

entity, is subject to attachment in aid of execution, and

execution, upon that judgment as provided in this section, regardless of—

(A) the level of economic control over the property by the government of the foreign state;

(B) whether the profits of the property go to that

government;

daily affairs;

(D) whether that government is the sole beneficiary in interest of the property; or

(E) whether establishing the property as a separate entity would entitle the foreign state to benefits

in United States courts while avoiding its obligations.

(2) UNITED STATES SOVEREIGN IMMUNITY INAPPLICABLE .—Any property of a foreign state, or agency or

instrumentality of a foreign state, to which paragraph

(1) applies shall not be immune from attachment in aid

of execution, or execution, upon a judgment entered under section 1605A because the property is regulated by

the United States Government by reason of action taken

against that foreign state under the Trading With the

Enemy Act or the International Emergency Economic

Powers Act.

(3) THIRD-PARTY JOINT PROPERTY HOLDERS .—

Nothing in this subsection shall be construed to supersede the authority of a court to prevent appropriately

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the impairment of an interest held by a person who is

not liable in the action giving rise to a judgment in property subject to attachment in aid of execution, or execution, upon such judgment.

§ 1611. Certain types of property immune from execution

(a) Notwithstanding the provisions of section 1610

of this chapter, the property of those organizations designated by the President as being entitled to enjoy the

privileges, exemptions, and immunities provided by the

International Organizations Immunities Act shall not be

subject to attachment or any other judicial process impeding the disbursement of funds to, or on the order of,

a foreign state as the result of an action brought in the

courts of the United States or of the States.

(b) Notwithstanding the provisions of section 1610

of this chapter, the property of a foreign state shall be

immune from attachment and from execution, if—

(1) the property is that of a foreign central bank

or monetary authority held for its own account, unless such bank or authority, or its parent foreign government, has explicitly waived its immunity from attachment in aid of execution, or from execution, notwithstanding any withdrawal of the waiver which the

bank, authority or government may purport to effect

except in accordance with the terms of the waiver; or

(2) the property is, or is intended to be, used in

connection with a military activity and

(A) is of a military character, or

(B) is under the control of a military authority

or defense agency.

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of this chapter, the property of a foreign state shall be

immune from attachment and from execution in an action brought under section 302 of the Cuban Liberty

and Democratic Solidarity (LIBERTAD) Act of 1996 to

the extent that the property is a facility or installation

used by an accredited diplomatic mission for official

purposes.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.