Final sections of Jurisdiction, Sovereign Immunity, and Treaties will be on the agenda at the 2017 Annual Meeting.  Membership approval of the three drafts at the Annual Meeting would complete these portions of the U.S. Foreign Relations Law project.

In January, ALI’s Council approved Council Draft No. 3 of Sovereign Immunity, dealing with immunity of foreign states from jurisdiction to adjudicate, Council Draft No. 2 of Treaties, covering the status of treaties under U.S. law, and Council Draft No. 3 of Jurisdiction, dealing with prescriptive jurisdiction, jurisdiction to adjudicate in criminal cases, and enforcement.

Preliminary Draft No. 2 of the Sovereign Immunity portion of the project was cited in a 2014 federal circuit case.  In Jerez v. Republic of Cuba, 775 F.3d 419, Dec. 30, 2014, the U.S. Court of Appeals for the District of Columbia Circuit affirmed a district-court ruling that a Florida state court lacked subject-matter jurisdiction when it granted a default judgment against the Republic of Cuba. In that case, a former Cuban national attempted to enforce a $200 million default judgment that it had obtained in Florida state court against the Cuban government based on claims that he was unlawfully incarcerated and tortured in a Cuban prison in the 1960s and 1970s. The court held that “because no statutory exception to sovereign immunity under the FSIA applies, the Florida state court and the Florida district court lacked subject-matter jurisdiction.” The court cited the Reporters’ Note 2 to § 463 of Restatement Fourth, The Foreign Relations Law of the United States – Sovereign Immunity (Preliminary Draft No. 2, Nov. 5, 2014), in explaining that the FSIA contains a provision that “provides foreign sovereigns a special protection” for the reason that “‘the government is sometimes slow to respond and that the public fisc should be protected from claims that are unfounded but would be granted solely because the government failed to make a timely response.’”

Jennifer Morinigo

The American Law Institute

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