28 U.S.C. § 1605 : US Code - Section 1605: General exceptions to the jurisdictional immunity of a foreign state

Search 28 U.S.C. § 1605 : US Code - Section 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; or
(7) not otherwise covered by paragraph (2), 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 (as defined in section 2339A of
title 18) for such an act if such act or provision of material
support 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, except that the court shall decline to
hear a claim under this paragraph -
(A) if the foreign state was not designated as a state
sponsor of terrorism under section 6(j) of the Export
Administration Act of 1979 (50 U.S.C. App. 2405(j)) or section
620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371) at
the time the act occurred, unless later so designated as a
result of such act or the act is related to Case Number
1:00CV03110(EGS) in the United States District Court for the
District of Columbia; and
(B) even if the foreign state is or was so designated, if -
(i) the act occurred in the foreign state against which the
claim has been brought and the claimant has not afforded the
foreign state a reasonable opportunity to arbitrate the claim
in accordance with accepted international rules of
arbitration; or
(ii) neither the claimant nor the victim was a national of
the United States (as that term is defined in section
101(a)(22) of the Immigration and Nationality Act) when the
act upon which the claim is based occurred.
(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.
(c) Whenever notice is delivered under subsection (b)(1), the
suit to enforce a maritime lien shall thereafter proceed and shall
be heard and determined according to the principles of law and
rules of practice of suits in rem whenever it appears that, had the
vessel been privately owned and possessed, a suit in rem might have
been maintained. A decree against the foreign state may include
costs of the suit and, if the decree is for a money judgment,
interest as ordered by the court, except that the court may not
award judgment against the foreign state in an amount greater than
the value of the vessel or cargo upon which the maritime lien
arose. Such value shall be determined as of the time notice is
served under subsection (b)(1). Decrees shall be subject to appeal
and revision as provided in other cases of admiralty and maritime
jurisdiction. Nothing shall preclude the plaintiff in any proper
case from seeking relief in personam in the same action brought to
enforce a maritime lien as provided in this section.
(d) A foreign state shall not be immune from the jurisdiction of
the courts of the United States in any action brought to foreclose
a preferred mortgage, as defined in the Ship Mortgage Act, 1920 (46
U.S.C. 911 and following). Such action shall be brought, heard, and
determined in accordance with the provisions of that Act and in
accordance with the principles of law and rules of practice of
suits in rem, whenever it appears that had the vessel been
privately owned and possessed a suit in rem might have been
maintained.
(e) For purposes of paragraph (7) of subsection (a) -
(1) the terms "torture" and "extrajudicial killing" have the
meaning given those terms in section 3 of the Torture Victim
Protection Act of 1991;
(2) the term "hostage taking" has the meaning given that term
in Article 1 of the International Convention Against the Taking
of Hostages; and
(3) the term "aircraft sabotage" has the meaning given that
term in Article 1 of the Convention for the Suppression of
Unlawful Acts Against the Safety of Civil Aviation.
(f) No action shall be maintained under subsection (a)(7) unless
the action is commenced not later than 10 years after the date on
which the cause of action arose. All principles of equitable
tolling, including the period during which the foreign state was
immune from suit, shall apply in calculating this limitation
period.
(g) Limitation on Discovery. -
(1) In general. - (A) Subject to paragraph (2), if an action is
filed that would otherwise be barred by section 1604, but for
subsection (a)(7), the court, upon request of the Attorney
General, shall stay any request, demand, or order for discovery
on the United States that the Attorney General certifies would
significantly interfere with a criminal investigation or
prosecution, or a national security operation, related to the
incident that gave rise to the cause of action, until such time
as the Attorney General advises the court that such request,
demand, or order will no longer so interfere.
(B) A stay under this paragraph shall be in effect during the
12-month period beginning on the date on which the court issues
the order to stay discovery. The court shall renew the order to
stay discovery for additional 12-month periods upon motion by the
United States if the Attorney General certifies that discovery
would significantly interfere with a criminal investigation or
prosecution, or a national security operation, related to the
incident that gave rise to the cause of action.
(2) Sunset. - (A) Subject to subparagraph (B), no stay shall be
granted or continued in effect under paragraph (1) after the date
that is 10 years after the date on which the incident that gave
rise to the cause of action occurred.
(B) After the period referred to in subparagraph (A), the
court, upon request of the Attorney General, may stay any
request, demand, or order for discovery on the United States that
the court finds a substantial likelihood would -
(i) create a serious threat of death or serious bodily injury
to any person;
(ii) adversely affect the ability of the United States to
work in cooperation with foreign and international law
enforcement agencies in investigating violations of United
States law; or
(iii) obstruct the criminal case related to the incident that
gave rise to the cause of action or undermine the potential for
a conviction in such case.
(3) Evaluation of evidence. - The court's evaluation of any
request for a stay under this subsection filed by the Attorney
General shall be conducted ex parte and in camera.
(4) Bar on motions to dismiss. - A stay of discovery under this
subsection shall constitute a bar to the granting of a motion to
dismiss under rules 12(b)(6) and 56 of the Federal Rules of Civil
Procedure.
(5) Construction. - Nothing in this subsection shall prevent
the United States from seeking protective orders or asserting
privileges ordinarily available to the United States.