to the above effect, and this was presented to the District Court. Thereafter the District Court released the testimony and directed that the transcript of the testimony be transmitted forthwith to the Tokyo District Court.

For the declaration of the Supreme Court of Japan of July 24, 1976, and a letter of declaration of July 21, 1976, from the Attorney General of the Supreme Public Prosecutor's Office, Japan, addressed to the Supreme Court of Japan, see XV International Legal Materials 1014-1016.

87

Sovereign Immunity

Foreign Sovereign Immunities Act

The Foreign Sovereign Immunities Act of 1976 (P.L. 94-583; 90 Stat. 2891; 28 U.S.C. 1330, 1332, 1602-1611, 1391, 1441) was signed into law on October 21, 1976, to take effect on January 19, 1977. The purpose of the Act is to provide a firm basis for determining when and how parties can maintain a lawsuit against a foreign state or its entities in the courts of the United States and when a foreign state is entitled to sovereign immunity.

The bill H. R. 11315 was introduced in the 94th Congress on the basis of a draft recommended jointly by the Departments of State and Justice and submitted to the Congress on October 31, 1975 (see the 1975 Digest, pp. 347-368), revising an earlier bill introduced in 1973 (S. 566, H. R. 3493, 93d Cong., 1st Sess.). The reports of the Senate and House Committees on the Judiciary summarized the need for the legislation, as well as its objectives and background, as follows:

American citizens are increasingly coming into contact with foreign states and entities owned by foreign states. These interactions arise in a variety of circumstances, and they call into question whether our citizens will have access to the courts in order to resolve ordinary legal disputes. Instances of such contact occur when U.S. businessmen sell goods to a foreign state trading company, and disputes may arise concerning the purchase price. Another is when an American property owner agrees to sell land to a real estate investor that turns out to be a foreign government entity and conditions in the contract of sale may become a subject of contention. Still another example occurs when a citizen crossing the street may be struck by an automobile owned by a foreign embassy.

At present, there are no comprehensive provisions in our law available to inform parties when they can have recourse to the courts to assert a legal claim against a foreign state. Unlike other legal systems, U.S. law does not afford plaintiffs and their counsel with a means to commence a suit that is specifically addressed to foreign state defendants. It does not provide firm standards as to when a foreign state may validly assert the defense of sovereign immunity; and, in the event a plaintiff should obtain a final

judgment against a foreign state or one of its trading companies, our law does not provide the plaintiff with any means to obtain satisfaction of that judgment through execution against ordinary commercial assets.

In a modern world where foreign state enterprises are every day participants in commercial activities, H.R. 11315 is urgently needed legislation. The bill...would accomplish four objectives:

First, the bill would codify the so-called "restrictive" principle of sovereign immunity, as presently recognized in international law. Under this principle, the immunity of a foreign state is "restricted" to suits involving a foreign state's public acts (jure imperii) and does not extend to suits based on its commercial or private acts (jure gestionis). This principle was adopted by the Department of State in 1952 and has been followed by the courts and by the executive branch ever since. Moreover, it is regularly applied against the United States in suits against the U.S. Government in foreign courts.

Second, the bill would insure that this restrictive principle of immunity is applied in litigation before U.S.courts. At present, this is not always the case. Today, when a foreign state wishes to assert immunity, it will often request the Department of State to make a formal suggestion of immunity to the court. Although the State Department espouses the restrictive principle of immunity, the foreign state may attempt to bring diplomatic influences to bear upon the State Department's determination. A principal purpose of this bill is to transfer the determination of sovereign immunity from the executive branch to the judicial branch, thereby reducing the foreign policy implications of immunity determinations and assuring litigants that these often crucial decisions are made on purely legal grounds and under procedures that insure due process. The Department of State would be freed from pressures from foreign governments to recognize their immunity from suit and from any adverse consequences resulting from an unwillingness of of the Department to support support that immunity. . . . U.S. immunity practice would conform to the practice in virtually every other country-where sovereign immunity decisions are made exclusively by the courts and not by a foreign affairs agency.

Third, this bill would for the first time in U.S. law, provide a statutory procedure for making service upon, and obtaining in personam jurisdiction over, a foreign state. This would render unnecessary the practice of seizing and attaching the property of a foreign government for the purpose of obtaining jurisdiction.

Fourth, the bill would remedy, in part, the present predicament of a plaintiff who has obtained a judgment against a foreign state. Under existing law, a foreign state in our courts enjoys absolute immunity from execution, even in ordinary commercial litigation where commercial assets are available for the satisfaction of a judgment. H.R. 11315 seeks to restrict this broad immunity from execution. It would conform the execution immunity rules more closely to the jurisdiction immunity rules. It would provide the judgment creditor some remedy if, after a reasonable period, a foreign state or its enterprise failed to satisfy a final judgment.

BACKGROUND

Sovereign immunity is a doctrine of international law under which domestic courts, in appropriate cases, relinquish jurisdiction over a foreign state. It differs from diplomatic immunity (which is drawn into issue when an individual diplomat is sued). H.R. 11315 deals solely with sovereign immunity.

Sovereign immunity as a doctrine of international law was first recognized in our courts in the landmark case of The Schooner Exchange v. M'Faddon, 7 Cranch 116 (1812). There, Chief Justice Marshall upheld a plea of immunity, supported by an executive branch suggestion, by noting that a recognition of immunity was supported by the law and practice of nations. In the early part of this century, the Supreme Court began to place less emphasis on whether immunity was supported by the law and practice of nations, and relied instead on the practices and policies of the State Department. This trend reached its culmination in Ex Parte Peru, 318 U.S. 578 (1943) and Mexico v. Hoffman, 324 U.S. 30 (1945).

Partly in response to these decisions and partly in response to developments in international law, the Department of State adopted the restrictive principle of sovereign immunity in its "Tate Letter" of 1952, 26 Department of State Bulletin 984. Thus, under the Tate letter, the Department undertook, in future sovereign immunity determinations, to recognize immunity in cases based on a foreign state's public acts, but not in cases based on commercial or private acts. The Tate letter, however, has posed a number of difficulties. From a legal standpoint, if the Department applies the restrictive principle in a given case, it is in the awkward position of a political institution trying to apply a legal standard to litigation already before the courts. Moreover, it does not have the machinery to take evidence, to hear witnesses, or to afford appellate review. From a foreign relations standpoint, the initiative is left to the foreign state. The foreign state chooses which sovereign immunity determinations it will leave to the courts, and which it will take to the State Department. The foreign state also decides when it will attempt to exert diplomatic influences, thereby making it more difficult for the State Department to apply the Tate letter criteria. From the standpoint of the private litigant, considerable uncertainty results. A private party who deals with a foreign government entity cannot be certain that his legal dispute with a foreign state will not be decided on the basis of nonlegal considerations through the foreign government's intercession with the Department of State.

THE UNITED STATES IN FOREIGN COURTS

Since World War II, the United States has increasingly become involved in litigation in foreign courts. This litigation has involved such diverse activities as the purchase of goods and services by our embassies, employment of local personnel by our military bases, the construction or lease of buildings for our foreign missions, and traffic accidents involving U.S. Government-owned vehicles.

In the mid-1950's, when the United States first became involved in foreign suits on a large scale, foreign counsel retained by the Department of Justice were instructed to plead sovereign immuni

ty in almost every instance. However, the executive branch learned that almost every country in Western Europe followed the restrictive principle of sovereign immunity and the Government's pleas of immunity were routinely denied in tort and contract cases where the necessary contacts with the forum were present. Thus, in the 1960's, it became the practice of the Department of Justice to avoid claiming immunity when the United States was sued in countries that had adopted the restrictive principle of immunity, but to invoke immunity in those remaining countries that still held to the absolute immunity doctrine. Beginning in the early 1970's, it became the consistent practice of the Department of Justice not to plead sovereign immunity abroad in instances where, under the Tate letter standards, the Department would not recognize a foreign state's immunity in this country.

In virtually every country, the United States has found that sovereign immunity is a question of international law to be determined by the courts. The United States cannot take recourse to a foreign affairs agency abroad as other states have done in this country when they seek a suggestion of immunity from the Department of State.

*

CONCLUSION

On the basis of the facts outlined in the executive communication [of October 31, 1975; see the 1975 Digest, p. 346] and the testimony at the hearings on the bill, the committee finds that there is a clearly defined need for the enactment of these provisions into law. . . . S. Rept. 94-1310 and H. Rept. 94-1487, 94th Cong., 2d Sess. The reports supply a section-by-section analysis of the bill as favorably reported. For the substance of that analysis, see also the 1975 Digest, pp. 353-368. The Subcommittee on Administrative Law and Government Relations, House Committee on the Judiciary, held hearings on H.R. 11315, at which representatives of the Dept. of State and the Dept. of Justice testified. For a statement by President Ford on signing the Foreign Sovereign Immunities Act, see ante, Ch. 1, § 3, p. 1. For excerpts from the testimony of Monroe Leigh, Legal Adviser of the Dept. of State, and Bruno Ristau, Chief, Foreign Litigation Section, Civil Division, Dept. of Justice, see American Journal of International Law, Vol. 70, No. 3, Oct. 1976, pp. 817-820.

The Department of State issued a notice on November 10, 1976, of its policy with respect to the immunity of foreign states in U.S. courts, in light of the Foreign Sovereign Immunities Act of 1976 (P.L. 94-583). The notice sets forth a letter of November 2, 1976, to the Attorney General from Monroe Leigh, Legal Adviser of the Department, which states how the Department proposes to treat questions of foreign state immunity, both before and after the effective date of P.L. 94-583. The text of the letter follows:

DEAR MR. ATTORNEY GENERAL: Since the Tate Letter of 1952, 26 Dept. State Bull. 984, my predecessors and I have endeavored to keep your Department apprised of Department of State policy and practice with respect to the sovereign immunity of foreign states from the jurisdiction of United States courts. On October 21, 1976,

the President signed into law the Foreign Sovereign Immunities Act of 1976, P.L. 94-583. This legislation, which was drafted by both of our Departments, has as one of its objectives the elimination of the State Department's current responsibility in making sovereign immunity determinations. In accordance with the practice in most other countries, the statute places the responsibility for deciding sovereign immunity issues exclusively with the courts.

P.L. 94-583 is to go into effect 90 days from the date it was approved by the President, or on January 19, 1977. We wish to advise you of how the Department of State proposes to treat sovereign immunity requests prior to January 19, 1977, and what the Department of State's interests will be after that date.

Immunity from suit. Until January 19, 1977, the Department of State will apply the Tate Letter, in the event that it makes any determination with respect to a foreign government's immunity from suit. It should be noted that P.L. 94-583 embodies in many respects the practice under the Tate Letter.

Immunity from attachment. Until January 19, 1977, the Department will continue to give prompt attention to diplomatic requests from foreign states, for recognition of immunity of foreign government property from attachment. The Department of State's policy until now has been to recognize an immunity of all foreign government property from attachment-unless (1) the property in question is devoted to a commercial or private use; (2) the underlying lawsuit is based on a commercial or private activity of the foreign state; and (3) the purpose of the attachment is to commence a lawsuit and not to assure satisfaction of a final judgment.

The Department does not contemplate changing this policy before P.L. 94-583 takes effect. We have noted that until P.L. 94-583 takes effect, it may be difficult for a private litigant to commence a suit against a foreign state or its entities. Also, since P.L. 94-583 will not have any effect whatsoever on the running of the statute of limitations, a continuation of existing policy on attachment until January 19, 1977, might be the only way a claim for relief could be preserved.

P.L. 94-583 will make two important and related changes in the Department's sovereign immunity practice with respect to attachment. First, the statute will prescribe a means for commencing a suit against a foreign state and its entities by service of a summons and complaint, thus making jurisdictional attachments of foreign government property unnecessary.

Second, Section 1609 of the statute will provide an absolute immunity of foreign government property from jurisdictional attachment. Such jurisdictional attachments have given rise to diplomatic irritants in the past and, in recent years, have been the principal impetus for a Department of State role in sovereign immunity determinations. It appears that after January 19, 1977, any jurisdictional attachment of foreign government property could, under Section 1609 of P.L. 94-583, be promptly vacated upon motion to the appropriate court by the foreign state defendant.

Immunity from execution. The Department of State has in the