The Joy of Access to the Zone of Inhibition : Republic of Argentina v. Weltover, Inc. and the Commercial Activity Exception Under the Foreign Sovereign Immunities Act of 1976
In Republic of Argentina v. Weltover the United States Supreme Court granted unprecedented access to U.S. courts for persons seeking to file suit against a sovereign state. In particular, the Court held that the commercial activity exception under the Foreign Sovereign Immunities Act of 1976 (FSIA) permitted the Court to exercise jurisdiction over the Republic of Argentina for refusing to repay its bonds. In a broader sense, the Court's interpretation of the FSIA may spur additional litigation by significantly restricting when sovereign states can assert a defense of sovereign immunity. Under the Court's interpretation of the FSIA and the commercial activity exception, a sovereign state cannot assert sovereign immunity when it acts as a market participant, and its actions directly affect the United States. A foreign government can only assert sovereign immunity when it engages in acts peculiar to sovereigns, such as the regulation of capital markets. Implicit in Republic of Argentina is the conclusion that if a sovereign state participates in private capital markets, its actions are not peculiar to sovereigns, and thus it cannot claim sovereign immunity.First, this article identifies the issues presented in Republic of Argentina. Second, this article examines the historical development and definition of the foreign sovereign immunity doctrine. Third, this article discusses the disparate approaches of the circuit courts in defining the commercial activity exception prior to Republic of Argentina. It explains why the Second Circuit came closest to Congress' intentions, in light of the legislative history of the FSIA. Fourth, this article contends that in Republic of Argentina the Court failed to clearly and satisfactorily define "commercial activity" in a manner certain to resolve the circuit conflict. As a result, what constitutes "commercial activity" is still in a state of evolution. This article concludes that the failure to more clearly define "commercial activity" will cause more sovereign states to be brought before American courts, particularly developing sovereign states, because of their greater need to intervene in their domestic economies
Year of publication: |
2016
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Authors: | Leacock, Stephen |
Publisher: |
[2016]: [S.l.] : SSRN |
Saved in:
freely available
Extent: | 1 Online-Ressource (42 p) |
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Type of publication: | Book / Working Paper |
Language: | English |
Notes: | In: 5 Minn. J. Global Trade 81 (1996) Nach Informationen von SSRN wurde die ursprüngliche Fassung des Dokuments 1996 erstellt |
Source: | ECONIS - Online Catalogue of the ZBW |
Persistent link: https://www.econbiz.de/10012989205
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