#fsia — Public Fediverse posts

Seychelles International Airport - Mahe Island, Seychelles

https://en.wikipedia.org/wiki/Seychelles_International_Airport
https://www.openstreetmap.org/#map=13/-4.674340/55.521801

#FSIA #SEZ #MaheIsland #Seychelles #airport #aviation #avgeeks #GIS

Seychelles International Airport - Mahe Island, Seychelles

https://en.wikipedia.org/wiki/Seychelles_International_Airport
https://www.openstreetmap.org/#map=13/-4.674340/55.521801

#FSIA #SEZ #MaheIsland #Seychelles #airport #aviation #avgeeks #GIS

Seychelles International Airport - Mahe Island, Seychelles

https://en.wikipedia.org/wiki/Seychelles_International_Airport
https://www.openstreetmap.org/#map=13/-4.674340/55.521801

#FSIA #SEZ #MaheIsland #Seychelles #airport #aviation #avgeeks #GIS

Seychelles International Airport - Mahe Island, Seychelles

https://en.wikipedia.org/wiki/Seychelles_International_Airport
https://www.openstreetmap.org/#map=13/-4.674340/55.521801

#FSIA #SEZ #MaheIsland #Seychelles #airport #aviation #avgeeks #GIS

Seychelles International Airport - Mahe Island, Seychelles

https://en.wikipedia.org/wiki/Seychelles_International_Airport
https://www.openstreetmap.org/#map=13/-4.674340/55.521801

#FSIA #SEZ #MaheIsland #Seychelles #airport #aviation #avgeeks #GIS

Seychelles International Airport - Mahe Island, Seychelles

https://en.wikipedia.org/wiki/Seychelles_International_Airport
https://www.openstreetmap.org/#map=13/-4.674340/55.521801

#FSIA #SEZ #MaheIsland #Seychelles #airport #aviation #avgeeks #GIS

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “METAR FSIA 270400Z 13005KT 090V210 9999 FEW020 27/22 Q1014 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #seychellesinternationalairport #airport #victoria #seychelles #fsia #sez #metar #aviation #aviationweather #avgeek vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “METAR FSIA 270400Z 13005KT 090V210 9999 FEW020 27/22 Q1014 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #seychellesinternationalairport #airport #victoria #seychelles #fsia #sez #metar #aviation #aviationweather #avgeek vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “METAR FSIA 270400Z 13005KT 090V210 9999 FEW020 27/22 Q1014 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #seychellesinternationalairport #airport #victoria #seychelles #fsia #sez #metar #aviation #aviationweather #avgeek vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “METAR FSIA 270400Z 13005KT 090V210 9999 FEW020 27/22 Q1014 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #seychellesinternationalairport #airport #victoria #seychelles #fsia #sez #metar #aviation #aviationweather #avgeek vl

The Solicitor General Opposes Cert in Spain v. Blasket but Opens the Door to Future FSIA Challenges to Award Enforcement

Last week, in Kingdom of Spain v. Blasket Renewable Investments LLC, the Solicitor General (SG) weighed in on…
#Spain #ES #Europe #Europa #EU #arbitration #CVSG #ForeignSovereignImmunitiesAct #FSIA #JudgmentEnforcement #RecentCases #SupremeCourt
https://www.europesays.com/spain/34219/

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “METAR FSIA 260700Z 11009KT 090V150 9999 FEW020CB SCT024 30/24 Q1012 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #seychellesinternationalairport #airport #victoria #seychelles #fsia #sez #metar #aviation #aviationweather #avgeek vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “METAR FSIA 260700Z 11009KT 090V150 9999 FEW020CB SCT024 30/24 Q1012 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #seychellesinternationalairport #airport #victoria #seychelles #fsia #sez #metar #aviation #aviationweather #avgeek vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “METAR FSIA 260700Z 11009KT 090V150 9999 FEW020CB SCT024 30/24 Q1012 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #seychellesinternationalairport #airport #victoria #seychelles #fsia #sez #metar #aviation #aviationweather #avgeek vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “METAR FSIA 260700Z 11009KT 090V150 9999 FEW020CB SCT024 30/24 Q1012 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #seychellesinternationalairport #airport #victoria #seychelles #fsia #sez #metar #aviation #aviationweather #avgeek vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “METAR FSIA 260700Z 11009KT 090V150 9999 FEW020CB SCT024 30/24 Q1012 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #seychellesinternationalairport #airport #victoria #seychelles #fsia #sez #metar #aviation #aviationweather #avgeek vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “FSIA 150500Z 33009KT 9999 SCT020 29/25 Q1011 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #seychellesinternationalairport #airport #victoria #seychelles #fsia #sez #metar #aviation #aviationweather #avgeek vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “FSIA 150500Z 33009KT 9999 SCT020 29/25 Q1011 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #seychellesinternationalairport #airport #victoria #seychelles #fsia #sez #metar #aviation #aviationweather #avgeek vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “FSIA 150500Z 33009KT 9999 SCT020 29/25 Q1011 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #seychellesinternationalairport #airport #victoria #seychelles #fsia #sez #metar #aviation #aviationweather #avgeek vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “FSIA 150500Z 33009KT 9999 SCT020 29/25 Q1011 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #seychellesinternationalairport #airport #victoria #seychelles #fsia #sez #metar #aviation #aviationweather #avgeek vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “FSIA 150500Z 33009KT 9999 SCT020 29/25 Q1011 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #seychellesinternationalairport #airport #victoria #seychelles #fsia #sez #metar #aviation #aviationweather #avgeek vl

Seychelles International Airport - Mahe Island, Seychelles

https://en.wikipedia.org/wiki/Seychelles_International_Airport
https://www.openstreetmap.org/#map=13/-4.674340/55.521801

#FSIA #SEZ #MaheIsland #Seychelles #airport #aviation #avgeeks #GIS

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “FSIA 160600Z 32004KT 9999 FEW019CB SCT022 28/23 Q1012 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #seychellesinternationalairport #airport #victoria #seychelles #fsia #sez #metar #aviation #aviationweather #avgeek vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “FSIA 160600Z 32004KT 9999 FEW019CB SCT022 28/23 Q1012 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #seychellesinternationalairport #airport #victoria #seychelles #fsia #sez #metar #aviation #aviationweather #avgeek vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “FSIA 160600Z 32004KT 9999 FEW019CB SCT022 28/23 Q1012 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #seychellesinternationalairport #airport #victoria #seychelles #fsia #sez #metar #aviation #aviationweather #avgeek vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “FSIA 160600Z 32004KT 9999 FEW019CB SCT022 28/23 Q1012 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #seychellesinternationalairport #airport #victoria #seychelles #fsia #sez #metar #aviation #aviationweather #avgeek vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “FSIA 160600Z 32004KT 9999 FEW019CB SCT022 28/23 Q1012 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #seychellesinternationalairport #airport #victoria #seychelles #fsia #sez #metar #aviation #aviationweather #avgeek vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “FSIA 070500Z 35012KT 9999 SCT021 30/24 Q1014 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #seychellesinternationalairport #airport #victoria #seychelles #fsia #sez #metar #aviation #aviationweather #avgeek vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “FSIA 070500Z 35012KT 9999 SCT021 30/24 Q1014 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #seychellesinternationalairport #airport #victoria #seychelles #fsia #sez #metar #aviation #aviationweather #avgeek vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “FSIA 070500Z 35012KT 9999 SCT021 30/24 Q1014 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #seychellesinternationalairport #airport #victoria #seychelles #fsia #sez #metar #aviation #aviationweather #avgeek vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “FSIA 070500Z 35012KT 9999 SCT021 30/24 Q1014 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #seychellesinternationalairport #airport #victoria #seychelles #fsia #sez #metar #aviation #aviationweather #avgeek vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “FSIA 070500Z 35012KT 9999 SCT021 30/24 Q1014 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #seychellesinternationalairport #airport #victoria #seychelles #fsia #sez #metar #aviation #aviationweather #avgeek vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “FSIA 230700Z 34014KT 9999 SCT020 29/24 Q1013 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #seychellesinternationalairport #airport #victoria #seychelles #fsia #sez #metar #aviation #aviationweather #avgeek vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “FSIA 230700Z 34014KT 9999 SCT020 29/24 Q1013 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #seychellesinternationalairport #airport #victoria #seychelles #fsia #sez #metar #aviation #aviationweather #avgeek vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “FSIA 230700Z 34014KT 9999 SCT020 29/24 Q1013 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #seychellesinternationalairport #airport #victoria #seychelles #fsia #sez #metar #aviation #aviationweather #avgeek vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “FSIA 230700Z 34014KT 9999 SCT020 29/24 Q1013 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #seychellesinternationalairport #airport #victoria #seychelles #fsia #sez #metar #aviation #aviationweather #avgeek vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “FSIA 230700Z 34014KT 9999 SCT020 29/24 Q1013 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #seychellesinternationalairport #airport #victoria #seychelles #fsia #sez #metar #aviation #aviationweather #avgeek vl

The Chinese lawsuit against Missouri: some thoughts

Friend of Letters Blogatory Bill Dodge has reported on a really interesting lawsuit filed in a Chinese court by Wuhan city government, the Chinese Academy of Sciences, and the Wuhan Institute of Virology, accusing the State of Missouri and two former Missouri attorneys general of defamation. The claim is that the defendants lied about supposed Chinese hoarding of PPE during the pandemic and a supposed Chinese coverup about COVID. The plaintiffs seek billions of dollars in damage. The Chinese lawsuit is an obvious rejoinder to Missouri v. People’s Republic of China, my “unmeritorious case of the day” from April 27, 2020, accusing China of responsibility for COVID at the very outset of the pandemic. Here is what I wrote at the time:

We need to remember that one of the ideas at the heart of foreign sovereign immunity is reciprocity. Part of the reason it’s really important that the United States ensures that our domestic law of immunity continues to mirror (mostly) the customary international law of foreign sovereign immunity is that we can expect whatever we do to other countries in our courts one day to be done to us. I am not going to use this post to give my lament for American world leadership and American exceptionalism, but I do think that we will need one day soon to come to terms with the way in which we have squandered much of our power (I say “we” because we are all collectively responsible for our government, though if I were feeling partisan I could assign the bulk of the blame rather specifically) and the consequences, which likely will include having to reach accommodations we don’t want to reach because we’re no longer strong enough to do as we please on the world stage.

The Missouri case should in my view have been dismissed on foreign sovereign immunity grounds. Initially the district court did dismiss it, but in 2024 the Eighth Circuit reversed in part, holding, wrongly in my view, that the claim that China had horded PPE during the pandemic was within the commercial activity exception to immunity.1I wrote about other aspects of the decision here. The case ended with a multi-billion dollar default judgment.

In the new Chinese lawsuit, the plaintiffs claim that foreign sovereign immunity does not bar their suit because under Chinese law, “A foreign state does not enjoy immunity from the jurisdiction of PRC courts in litigation for compensation arising from personal injury or death or damage to movable or immovable property caused by the relevant act of the foreign state in PRC territory.”2Interestingly, Bill tells us that Chinese law also gives foreign government officials sovereign immunity for their governmental acts. Bill observes that there is another exception in Chinese law, which American law lacks and that would support jurisdiction: “Where foreign states accord the PRC and its property narrower immunity than is provided by this Law, the PRC will apply the principle of reciprocity.”

Bill quotes Chimène Keitner, who has described the situation as “unhelpful political theater … with no clear off-ramp for either side to save face.” In one sense, of course she’s right. But I can’t help thinking there is a pretty important lesson in this new development. The Republican Party of Donald Trump and Stephen Miller has a ridiculous view of American power and of the international order. It thinks we have the political, military, and economic power to do whatever we want without worrying about how others will react. I’m leaving aside the question of whether the things we want to do are sensible things, even through the lens of self-interest. Annex Greenland? No problem. What about NATO? We don’t need allies. What about adverse international reaction? We’ll tariff the bejezus out of anyone who objects. But as the Chinese lawsuit shows, there are other powers in the world, with other agendas that we ignore at our peril. Assert jurisdiction over the Chinese government for supposedly hording PPE? Great, but let’s not think too hard about how the Chinese government might reply in its own courts. Who elected these people? (That’s rhetorical. We, the American people, elected these people, and we are collectively responsible for the consequences).

Now compare that attitude with the attitude of another Republican administration, in fact the first Republican administration. I’m thinking of the Peterhoff Incident. I would like to tell you that I learned of the incident in a course on international law3The incident led to a Supreme Court decision, The Peterhoff, 72 U.S. 28 (1866). or even from the awesome Civil War seminar I once got to take with Prof. James McPherson, but in fact I learned of it from William Safire’s not-bad, very long novel, Freedom. For some reason, it is the one of two things that stuck with me from reading the novel as a teenager. The other was the courtroom scene when a deputy marshal had to tell Justice Taney that the government was flouting a writ of habeas corpus at the outset of the war. I suppose I was doomed to go to law school.

Anyway, the Peterhoff Incident. The USS Vanderbilt captured a Royal Mail ship, the Peterhoff, in the West Indies on its way, it claimed, to Mexico. Although the ship was a neutral ship that claimed to be heading to Matamoros, a neutral port, the Navy thought it might be trying to run the blockade of Confederate ports, because Matamoros was just across the Rio Grande from Brownville. Lincoln’s cabinet debated whether or not to open the mail that the ship was carrying to see where it was really headed. Welles, the Secretary of the Navy, pushed to open the mail, arguing that under the law of prizes, the mail could be opened to determine the ship’s intent, and it would then be up to the courts to decide the consequences. But Seward, the Secretary of State, wanted to send the mail along unopened, fearing conflict with Britain. If Britain came into the war on the side of the Confederates, things might have gone differently. One other point, although I don’t think it was emphasized in the novel, was that at the time there was a lot of anti-British sentiment in the North, and I am guessing that seizing the mails might have been popular, or might, as we would say today, been “red meat for the base.”

It was up to Lincoln to make the decision, and in the middle of the greatest crisis in American history, he decided to uphold the sanctity of the mails, of all things. This wasn’t just principle, it was also good diplomacy: Lincoln needed at all costs to avoid war with Britain. Lincoln was saying, in effect, “even if we can open the mails, even if we can legally open the mails, is it the right or smart thing to do?”

What I’m saying is, I wish the attorney general of Missouri, even during the crisis days of COVID, could have been more like Abraham Lincoln. I wish he could have said, “I can sue the Chinese government and its instrumentalities in court, I think I can legally sue them (i.e., I don’t think they are immune from suit).4And at least according to the Eight Circuit, he could. But is it the right or smart thing to do?” Perhaps more pushback from other states will help encourage the more responsible elements in the Republican Party to show some backbone when it comes to international comity.

• 1 I wrote about other aspects of the decision here.
• 2 Interestingly, Bill tells us that Chinese law also gives foreign government officials sovereign immunity for their governmental acts.
• 3 The incident led to a Supreme Court decision, The Peterhoff, 72 U.S. 28 (1866).
• 4 And at least according to the Eight Circuit, he could.

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “FSIA 010600Z 33016KT 9999 FEW018CB SCT021 30/24 Q1013 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #seychellesinternationalairport #airport #victoria #seychelles #fsia #sez #metar #aviation #aviationweather #avgeek vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “FSIA 010600Z 33016KT 9999 FEW018CB SCT021 30/24 Q1013 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #seychellesinternationalairport #airport #victoria #seychelles #fsia #sez #metar #aviation #aviationweather #avgeek vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “FSIA 010600Z 33016KT 9999 FEW018CB SCT021 30/24 Q1013 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #seychellesinternationalairport #airport #victoria #seychelles #fsia #sez #metar #aviation #aviationweather #avgeek vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “FSIA 010600Z 33016KT 9999 FEW018CB SCT021 30/24 Q1013 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #seychellesinternationalairport #airport #victoria #seychelles #fsia #sez #metar #aviation #aviationweather #avgeek vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “FSIA 010600Z 33016KT 9999 FEW018CB SCT021 30/24 Q1013 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #seychellesinternationalairport #airport #victoria #seychelles #fsia #sez #metar #aviation #aviationweather #avgeek vl

Seychelles International Airport - Mahe Island, Seychelles

https://en.wikipedia.org/wiki/Seychelles_International_Airport
https://www.openstreetmap.org/#map=13/-4.674340/55.521801

#FSIA #SEZ #MaheIsland #Seychelles #airport #aviation #avgeeks #GIS

Case of the Day: Yukos v. Russia

Bill Dodge has a good post at the Transnational Litigation Blog about today’s case of the day, Yukos Capital Ltd. v. Russian Federation (D.D.C. 2025). The case was for confirmation of an arbitral award. Yukos served process on Russia under 28 U.S.C. § 1608(a)(4) through diplomatic channels. But the method was unusual. Typically, when you have to serve process in this way, you request the State Department to make service, and the State Department arranges for the US embassy abroad to deliver the papers, with a diplomatic note, to the Foreign Ministry. This is what the State Department’s regulations generally provide (22 C.F.R. § 93.1), though the regulation provides that “If the foreign state so requests or if otherwise appropriate,” the State Department can instead deliver the papers and the diplomatic note “to the embassy of the foreign state in the District of Columbia.”

Here, the State Department delivered the papers with a diplomatic note to the Russian embassy in Washington. I don’t know why the State Department did things that way. In any event, Russia argued that the court lacked personal jurisdiction because it had not been properly served. It argued that the service was improper because Russia refused delivery of the papers at the embassy, and thus it was not “appropriate,” to use the word of the regulation, to serve process at the embassy, especially in light of the inviolability of the embassy premises under the Vienna Convention.

The judge rejected Russia’s position. Some of his reasoning is not persuasive to me. For example, he argued that requiring service on the foreign ministry in Moscow instead of the embassy would make § 1608(a)(4) duplicative of § 1608(a)(3), which provides for service on the Foreign Minister. But that seems clearly wrong to me. Section 1608(a)(3) provides for service on the foreign minister by postal channels, while § 1608(a)(4) provides for service by diplomatic channels. Also, 1608(a)(3) calls for service on the foreign minister, a distinction that has been inportant in prior cases. 1

He also reasoned that the regulation merely regulated the State Department’s internal processes and that a violation of the regulation—if there was a violation—would not render the service improper. But it seems to me that the contents of the regulation might be evidence of what the United States position is on the requirements of customary international law.

I agree with everything Bill writes in his post, though I think that the issue really boils down to the question of what customary international law has to say, a point the judge did not really address. The U.N. Convention on the Jurisdictional Immunities of States and Their Properties (which is not a binding treaty) suggests that service of process in the circumstances of cases like this must be by “transmission through diplomatic channels to the Ministry of Foreign Affairs of the State concerned.” But maybe the Convention doesn’t accurately state the customary international law on this point. Bill writes: “Even if one could show widespread practice limiting transmission of service through diplomatic channels to foreign ministries, one would have to show that such practice was followed from a sense of legal obligation (opinio juris) in order to establish a rule of customary international law.”

I don’t know the answer to the customary international law question. But surely the safer course is to transmit the document to the Foreign Ministry rather than the embassy, if only to avoid needless litigation about service.

1. The Kumar case suggests some uncertainty about Bill’s point that there is no Vienna Convention issue here. ↩︎

#FSIA #RecognitionAndEnforcement #Russia #ViennaConvention

Case of the Day: Yukos v. Russia

Bill Dodge has a good post at the Transnational Litigation Blog about today’s case of the day, Yukos Capital Ltd. v. Russian Federation (D.D.C. 2025). The case was for confirmation of an arbitral award. Yukos served process on Russia under 28 U.S.C. § 1608(a)(4) through diplomatic channels. But the method was unusual. Typically, when you have to serve process in this way, you request the State Department to make service, and the State Department arranges for the US embassy abroad to deliver the papers, with a diplomatic note, to the Foreign Ministry. This is what the State Department’s regulations generally provide (22 C.F.R. § 93.1), though the regulation provides that “If the foreign state so requests or if otherwise appropriate,” the State Department can instead deliver the papers and the diplomatic note “to the embassy of the foreign state in the District of Columbia.”

Here, the State Department delivered the papers with a diplomatic note to the Russian embassy in Washington. I don’t know why the State Department did things that way. In any event, Russia argued that the court lacked personal jurisdiction because it had not been properly served. It argued that the service was improper because Russia refused delivery of the papers at the embassy, and thus it was not “appropriate,” to use the word of the regulation, to serve process at the embassy, especially in light of the inviolability of the embassy premises under the Vienna Convention.

The judge rejected Russia’s position. Some of his reasoning is not persuasive to me. For example, he argued that requiring service on the foreign ministry in Moscow instead of the embassy would make § 1608(a)(4) duplicative of § 1608(a)(3), which provides for service on the Foreign Minister. But that seems clearly wrong to me. Section 1608(a)(3) provides for service on the foreign minister by postal channels, while § 1608(a)(4) provides for service by diplomatic channels. Also, 1608(a)(3) calls for service on the foreign minister, a distinction that has been inportant in prior cases. 1

He also reasoned that the regulation merely regulated the State Department’s internal processes and that a violation of the regulation—if there was a violation—would not render the service improper. But it seems to me that the contents of the regulation might be evidence of what the United States position is on the requirements of customary international law.

I agree with everything Bill writes in his post, though I think that the issue really boils down to the question of what customary international law has to say, a point the judge did not really address. The U.N. Convention on the Jurisdictional Immunities of States and Their Properties (which is not a binding treaty) suggests that service of process in the circumstances of cases like this must be by “transmission through diplomatic channels to the Ministry of Foreign Affairs of the State concerned.” But maybe the Convention doesn’t accurately state the customary international law on this point. Bill writes: “Even if one could show widespread practice limiting transmission of service through diplomatic channels to foreign ministries, one would have to show that such practice was followed from a sense of legal obligation (opinio juris) in order to establish a rule of customary international law.”

I don’t know the answer to the customary international law question. But surely the safer course is to transmit the document to the Foreign Ministry rather than the embassy, if only to avoid needless litigation about service.

1. The Kumar case suggests some uncertainty about Bill’s point that there is no Vienna Convention issue here. ↩︎

#FSIA #RecognitionAndEnforcement #Russia #ViennaConvention

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “FSIA 130400Z VRB04KT 9999 SCT022 27/20 Q1013 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #victoria #seychelles #seychellesinternationalairport #fsia #sez #metar #aviation #aviationweather #avgeek #airport vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “FSIA 130400Z VRB04KT 9999 SCT022 27/20 Q1013 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #victoria #seychelles #seychellesinternationalairport #fsia #sez #metar #aviation #aviationweather #avgeek #airport vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “FSIA 130400Z VRB04KT 9999 SCT022 27/20 Q1013 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #victoria #seychelles #seychellesinternationalairport #fsia #sez #metar #aviation #aviationweather #avgeek #airport vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “FSIA 130400Z VRB04KT 9999 SCT022 27/20 Q1013 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #victoria #seychelles #seychellesinternationalairport #fsia #sez #metar #aviation #aviationweather #avgeek #airport vl

Case of the Day: Global Voice Group v. Guinea

The case of the day is Global Voice Group S.A. v. Republic of Guinea (D.D.C. 2025). GVG had a contract to “provide and install control tools to enable Guinea to view and tax all international telecommunications traffic.” The contract identified the other party as the Postal and Telecommunications Regulatory Authority of Guinea. It had an arbitration agreement. Payment disputes arose, and GVG requested arbitration at the ICC in Paris against the PTRA and against the Republic of Guinea itself. While the PTRA had signed the contract, another Guinean governmental official outside the PTRA had also signed the contract. Guinea participated in the arbitration but objected to the tribunal’s jurisdiction. The tribunal disagreed, though, finding, under French law, that Guinea was a party to the agreement. It awarded damages to GVG. Guinea and the PTRA sought annulment in the Paris Court of Appeal. That court ruled in Global Voice’s favor, too.

GVG sought recognition and enforcement in Washington, but only against Guinea, not the PTRA. GVG sought entry of default one day after the deadline for Guinea to answer,1 and the clerk entered the default. Guinea moved to set the default aside, and GVG moved for entry of default judgment. There was a service of process issue in the motions, but the court didn’t discuss it. The main issue was Guinea’s argument that the court lacked jurisdiction because it was not a party to the agreement to arbitrate.

This issue is interesting to me because it reminds me of an issue in my case from a couple of years ago against the government of Nigeria. In that case, there was no question that the Nigerian government was a party to the agreement. But in the arbitration, the claimants were the counterparty to the contract and its owner. Nigeria did not challenge the tribunal’s jurisdiction over his claim during the arbitration, and the award issued in favor of the business and the owner. But when we sought confirmation in Washington, Nigeria argued the court lacked jurisdiction, because the owner was not a party to the agreement. The court held, correctly, that that was a merits question (is there an exception to the rule of the New York Convention requiring confirmation where the owner did not sign the agreement in his individual capacity?) with a jurisdiction question (does the FSIA’s arbitration exception to foreign sovereign immunity apply in this situation?)

But is that also the rule when it’s the foreign state, not the private party, whose status as a party to the agreement to arbitrate is in question? No, it’s not, as the court held in today’s case. The FSIA’s exception applies to cases

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 [the dispute] to arbitration …

The court doesn’t put it this way, but the best reading of the statute, in my view, is that it does require that the foreign state be a party to the agreement but does not require that the private party be a party (or intended third-party beneficiary) of the contract. It says “a” private party, not “the” private party. If you’ll indulge me, here is how I put it in the DC Circuit brief (the case settled before oral argument):

The FSIA requires “an agreement made by the foreign state with or for the benefit of a private party.” 28 U.S.C. § 1605(a)(6). It does not require an agreement made by the foreign state with or for the benefit of the claimant, or with or for the benefit of the award creditor, or even with or for the benefit of the private party. It requires an agreement made by the foreign state with a private party.

The indefinite article, “a” or “an,” is used when “referring to something not specifically identified … but [instead] treated as one of a class: one, some, any.” Citizens for Responsibility & Ethics in Wash. v. FEC, 971 F.3d 340, 354 (D.C. Cir. 2020) (citation omitted). See also Black’s Law Dictionary 77 (5th ed. 1979) (the indefinite article is “equivalent to ‘one’ or ‘any’”).

So when the statute refers to an agreement “with … a private party,” it cannot be read to refer to the agreement with a particular private party, for example the private party petitioning for confirmation. See Balkan Energy Ltd. v. Republic of Ghana, 302 F. Supp. 3d 144 (D.D.C. 2018) (holding that the court had jurisdiction over a petition brought by the assignee of an award rather than by the original award creditor). All the statute requires is that the award be made under an agreement with some private party. The definite article “the” appears earlier in the same sentence, strengthening the case. The agreement under which the award is made must be between the foreign state, that is, the foreign state against whom the petition is brought, and a private party.

This construction accords with the cases discussed above. In particular, it accords with cases such as First Investment [Corp. v. Fujian Mawei Shipbuilding, Ltd., 703 F.3d 742 (5th Cir. 2012)] and Gater [Assets Ltd. v. AO Moldovagaz, 2 F.4th 42 (2d Cir. 2021)], since in those cases the problem was that an instrumentality of the foreign state had signed an agreement to arbitrate but the foreign state itself had not. The arbitration exception applies when the award was made under a written agreement between the foreign state and a private party; questions about whether the dispute was one the foreign state had agreed to arbitrate are merits questions, not jurisdictional questions. Only if the petitioner cannot show that the award was made under a written agreement between the foreign state and some private party does the district court lack subject-matter jurisdiction.

In short, the court was right to say that when a foreign state says it is not a party to the agreement under which the award against it was rendered, its challenge is to jurisdiction and not to the merits, in light of the plain language of the FSIA.

1. In my opinion that is bad karma, unless there was correspondence not reflected in the decision showing that Guinea had no intention of answering. ↩︎

#arbitration #FSIA #Guinea #NewYorkConvention

Case of the Day: Global Voice Group v. Guinea

The case of the day is Global Voice Group S.A. v. Republic of Guinea (D.D.C. 2025). GVG had a contract to “provide and install control tools to enable Guinea to view and tax all international telecommunications traffic.” The contract identified the other party as the Postal and Telecommunications Regulatory Authority of Guinea. It had an arbitration agreement. Payment disputes arose, and GVG requested arbitration at the ICC in Paris against the PTRA and against the Republic of Guinea itself. While the PTRA had signed the contract, another Guinean governmental official outside the PTRA had also signed the contract. Guinea participated in the arbitration but objected to the tribunal’s jurisdiction. The tribunal disagreed, though, finding, under French law, that Guinea was a party to the agreement. It awarded damages to GVG. Guinea and the PTRA sought annulment in the Paris Court of Appeal. That court ruled in Global Voice’s favor, too.

GVG sought recognition and enforcement in Washington, but only against Guinea, not the PTRA. GVG sought entry of default one day after the deadline for Guinea to answer,1 and the clerk entered the default. Guinea moved to set the default aside, and GVG moved for entry of default judgment. There was a service of process issue in the motions, but the court didn’t discuss it. The main issue was Guinea’s argument that the court lacked jurisdiction because it was not a party to the agreement to arbitrate.

This issue is interesting to me because it reminds me of an issue in my case from a couple of years ago against the government of Nigeria. In that case, there was no question that the Nigerian government was a party to the agreement. But in the arbitration, the claimants were the counterparty to the contract and its owner. Nigeria did not challenge the tribunal’s jurisdiction over his claim during the arbitration, and the award issued in favor of the business and the owner. But when we sought confirmation in Washington, Nigeria argued the court lacked jurisdiction, because the owner was not a party to the agreement. The court held, correctly, that that was a merits question (is there an exception to the rule of the New York Convention requiring confirmation where the owner did not sign the agreement in his individual capacity?) with a jurisdiction question (does the FSIA’s arbitration exception to foreign sovereign immunity apply in this situation?)

But is that also the rule when it’s the foreign state, not the private party, whose status as a party to the agreement to arbitrate is in question? No, it’s not, as the court held in today’s case. The FSIA’s exception applies to cases

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 [the dispute] to arbitration …

The court doesn’t put it this way, but the best reading of the statute, in my view, is that it does require that the foreign state be a party to the agreement but does not require that the private party be a party (or intended third-party beneficiary) of the contract. It says “a” private party, not “the” private party. If you’ll indulge me, here is how I put it in the DC Circuit brief (the case settled before oral argument):

The FSIA requires “an agreement made by the foreign state with or for the benefit of a private party.” 28 U.S.C. § 1605(a)(6). It does not require an agreement made by the foreign state with or for the benefit of the claimant, or with or for the benefit of the award creditor, or even with or for the benefit of the private party. It requires an agreement made by the foreign state with a private party.

The indefinite article, “a” or “an,” is used when “referring to something not specifically identified … but [instead] treated as one of a class: one, some, any.” Citizens for Responsibility & Ethics in Wash. v. FEC, 971 F.3d 340, 354 (D.C. Cir. 2020) (citation omitted). See also Black’s Law Dictionary 77 (5th ed. 1979) (the indefinite article is “equivalent to ‘one’ or ‘any’”).

So when the statute refers to an agreement “with … a private party,” it cannot be read to refer to the agreement with a particular private party, for example the private party petitioning for confirmation. See Balkan Energy Ltd. v. Republic of Ghana, 302 F. Supp. 3d 144 (D.D.C. 2018) (holding that the court had jurisdiction over a petition brought by the assignee of an award rather than by the original award creditor). All the statute requires is that the award be made under an agreement with some private party. The definite article “the” appears earlier in the same sentence, strengthening the case. The agreement under which the award is made must be between the foreign state, that is, the foreign state against whom the petition is brought, and a private party.

This construction accords with the cases discussed above. In particular, it accords with cases such as First Investment [Corp. v. Fujian Mawei Shipbuilding, Ltd., 703 F.3d 742 (5th Cir. 2012)] and Gater [Assets Ltd. v. AO Moldovagaz, 2 F.4th 42 (2d Cir. 2021)], since in those cases the problem was that an instrumentality of the foreign state had signed an agreement to arbitrate but the foreign state itself had not. The arbitration exception applies when the award was made under a written agreement between the foreign state and a private party; questions about whether the dispute was one the foreign state had agreed to arbitrate are merits questions, not jurisdictional questions. Only if the petitioner cannot show that the award was made under a written agreement between the foreign state and some private party does the district court lack subject-matter jurisdiction.

In short, the court was right to say that when a foreign state says it is not a party to the agreement under which the award against it was rendered, its challenge is to jurisdiction and not to the merits, in light of the plain language of the FSIA.

1. In my opinion that is bad karma, unless there was correspondence not reflected in the decision showing that Guinea had no intention of answering. ↩︎

#arbitration #FSIA #Guinea #NewYorkConvention

Case of the day: Devas v. Antrix

The case of the day is Devas Multimedia Pvt. Ltd. v. Antrix Corp. Ltd. (S. Ct. 2025), my “case to watch” from March 7, 2025. Antrix was an Indian state-owned enterprise that promoted and marketed the Indian space program. It signed a satellite leasing contract with Devas, an Indian company, und which Antrix would build a satellite and put it in geostationary orbit, and Devas would lease network capacity on the satellite to provide multimedia broadcasting service throughout India. After years of work leading up to the launch, but before the launch itself, the Indian government decided it needed the S-band spectrum, the part of the satellite’s spectrum that Devas planned to lease, for its own purposes. So it caused Antrix to terminate the contract, citing the government’s new policy and the force majeure clause. Devas brought an arbitration, asserting that the force majeure was “self-induced” and that Antrix was liable for breach. The arbitrators awarded more than $500 million in damages. Devas confirmed the award in courts in France and the UK and sought confirmation in the Western District of Washington. Antrix moved to dismiss on the grounds that the court lacked jurisdiction. That argument seems like a loser on its face, because the FSIA has an exception to the ordinary rule of foreign sovereign immunity in cases seeking confirmation of an arbitral award if the award is “governed by a treaty or other international agreement in force for the United States calling for the recognition and enforcement of arbitral awards.” And the district court did confirm the award and entered a $1.3 billion judgment.

Then the case took a turn. An Indian court held that Devas had fraudulently induced Antrix to enter into the contract. The Indian government then seized Devas in order to wind down its business. Several shareholders, and an American subsidiary of the company, then sought to intervene in the US case so that they could seek to enforce the judgment, and the court allowed the intervention. An Indian court also set aside the award in light of the finding of fraud.

On appeal, the Ninth Circuit reversed, holding that the district court lacked personal jurisdiction. Come again? Ordinarily everyone understands that when an FSIA exception to foreign sovereign immunity applies, the court necessarily has personal jurisdiction. The statute says that the court has personal jurisdiction “as to every claim for relief over which the district courts have jurisdiction” because no exception to immunity applies “where service has been made under [28 U.S.C. §] 1608.” But the Ninth Circuit held that Devas also had to show sufficient minimum contacts between the sovereign defendant and the United States. Hence today’s case.

Today’s unanimous decision, by Justice Alito, dispatched the Ninth Circuit’s statutory analysis. The text of the statute is pretty darn clear, and in fact, the requirement of connection with the United States is built into many of the FSIA’s exceptions.1 The Court also found the legislative history supported the conclusion. I am always happy to see the Court cite legislative history, and in particular the House Report on the FSIA, though I note that here it cited the legislative history “to the extent it is relevant,” which I assume was the price of keeping the decision unanimous.

But Devas didn’t even try to defend the Ninth Circuit’s statutory analysis. Instead, it argued that the minimum contacts requirement followed from the Due Process Clause, which is to say that a foreign sovereign is a “person” entitled to due process for constitutional purposes. Unfortunately but probably predictably, the Court avoided decision on that issue, because the Ninth Circuit hadn’t addressed it. Thus it remanded the case for further proceedings.

1. The commercial activity exception, for example, requires commercial activity “carried on in the United States,” or a commercial act abroad “that causes a direct effect in the United States.” The expropriation exception requires that the expropriated property, or property exchanged for it, be “present in the United States in connection with a commercial activity carried on in the United States.” And so on. ↩︎

#FSIA #India #personalJurisdiction

Case of the day: Devas v. Antrix

The case of the day is Devas Multimedia Pvt. Ltd. v. Antrix Corp. Ltd. (S. Ct. 2025), my “case to watch” from March 7, 2025. Antrix was an Indian state-owned enterprise that promoted and marketed the Indian space program. It signed a satellite leasing contract with Devas, an Indian company, und which Antrix would build a satellite and put it in geostationary orbit, and Devas would lease network capacity on the satellite to provide multimedia broadcasting service throughout India. After years of work leading up to the launch, but before the launch itself, the Indian government decided it needed the S-band spectrum, the part of the satellite’s spectrum that Devas planned to lease, for its own purposes. So it caused Antrix to terminate the contract, citing the government’s new policy and the force majeure clause. Devas brought an arbitration, asserting that the force majeure was “self-induced” and that Antrix was liable for breach. The arbitrators awarded more than $500 million in damages. Devas confirmed the award in courts in France and the UK and sought confirmation in the Western District of Washington. Antrix moved to dismiss on the grounds that the court lacked jurisdiction. That argument seems like a loser on its face, because the FSIA has an exception to the ordinary rule of foreign sovereign immunity in cases seeking confirmation of an arbitral award if the award is “governed by a treaty or other international agreement in force for the United States calling for the recognition and enforcement of arbitral awards.” And the district court did confirm the award and entered a $1.3 billion judgment.

Then the case took a turn. An Indian court held that Devas had fraudulently induced Antrix to enter into the contract. The Indian government then seized Devas in order to wind down its business. Several shareholders, and an American subsidiary of the company, then sought to intervene in the US case so that they could seek to enforce the judgment, and the court allowed the intervention. An Indian court also set aside the award in light of the finding of fraud.

On appeal, the Ninth Circuit reversed, holding that the district court lacked personal jurisdiction. Come again? Ordinarily everyone understands that when an FSIA exception to foreign sovereign immunity applies, the court necessarily has personal jurisdiction. The statute says that the court has personal jurisdiction “as to every claim for relief over which the district courts have jurisdiction” because no exception to immunity applies “where service has been made under [28 U.S.C. §] 1608.” But the Ninth Circuit held that Devas also had to show sufficient minimum contacts between the sovereign defendant and the United States. Hence today’s case.

Today’s unanimous decision, by Justice Alito, dispatched the Ninth Circuit’s statutory analysis. The text of the statute is pretty darn clear, and in fact, the requirement of connection with the United States is built into many of the FSIA’s exceptions.1 The Court also found the legislative history supported the conclusion. I am always happy to see the Court cite legislative history, and in particular the House Report on the FSIA, though I note that here it cited the legislative history “to the extent it is relevant,” which I assume was the price of keeping the decision unanimous.

But Devas didn’t even try to defend the Ninth Circuit’s statutory analysis. Instead, it argued that the minimum contacts requirement followed from the Due Process Clause, which is to say that a foreign sovereign is a “person” entitled to due process for constitutional purposes. Unfortunately but probably predictably, the Court avoided decision on that issue, because the Ninth Circuit hadn’t addressed it. Thus it remanded the case for further proceedings.

1. The commercial activity exception, for example, requires commercial activity “carried on in the United States,” or a commercial act abroad “that causes a direct effect in the United States.” The expropriation exception requires that the expropriated property, or property exchanged for it, be “present in the United States in connection with a commercial activity carried on in the United States.” And so on. ↩︎

#FSIA #India #personalJurisdiction

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “FSIA 022000Z 18004KT 140V210 9999 SCT020 29/25 Q1010 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #victoria #seychelles #seychellesinternationalairport #fsia #sez #metar #aviation #aviationweather #avgeek vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “FSIA 022000Z 18004KT 140V210 9999 SCT020 29/25 Q1010 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #victoria #seychelles #seychellesinternationalairport #fsia #sez #metar #aviation #aviationweather #avgeek vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “FSIA 022000Z 18004KT 140V210 9999 SCT020 29/25 Q1010 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #victoria #seychelles #seychellesinternationalairport #fsia #sez #metar #aviation #aviationweather #avgeek vl

Aviation weather for Seychelles International airport in Victoria area (Seychelles) is “FSIA 022000Z 18004KT 140V210 9999 SCT020 29/25 Q1010 NOSIG” : See what it means on https://www.bigorre.org/aero/meteo/fsia/en #victoria #seychelles #seychellesinternationalairport #fsia #sez #metar #aviation #aviationweather #avgeek vl

Case of the Day: Missouri v. China

During COVID I wrote about what I regarded as an absurd case: the state of Missouri suing China and Chinese government instrumentalities for damages arising from the pandemic. I thought the case was absurd mainly because of foreign sovereign immunity, but also because the service of process on the two arguably non-governmental defendants was bad. But we live in absurd times, and as I reported in an earlier post, after the district court dismissed the action on FSIA grounds, the Eighth Circuit revived one of the claims, a claim that China had hoarded PPE by nationalizing factories that had been producing PPE for US firms, thus violating US antitrust law and Missouri law. On remand, the district court has now granted a default judgment for Missouri for nearly $25 billion in damages. I continue to think this is a case that should never have been brought. And although the case attracted some amicus attention, I think that US judges need to do better, in cases where the foreign state does not appear, to get the law of foreign sovereign immunity right, especially in such a politically fraught, high dollar-value case.

Service of Process

As we know, China and the United States are parties to the Hague Service Convention. The Supreme Court has held that the Convention is mandatory, or in the terms more often used internationally, exclusive. That means that if the Convention applies, then the plaintiff must serve process using one of the methods that the Convention authorizes, or at least permits. The Federal Rules of Civil Procedure reflect this rule. FRCP 4(f)(3) allows the court to authorize alternate methods of service, even if they violate foreign law, but not if they violate the Convention.

Missouri served process on the Chinese Communist Party, the Chinese Academy of Sciences, and the Wuhan Institute of Virology by email, after seeking and receiving permission from the court under FRCP 4(f)(3). Leaving aside the question of whether any of these defendants is an instrumentality of the Chinese state (it is hard to see how the Chinese Communist Party would not be at least an instrumentality of the state),1See my prior post on the case for a discussion of this point. The bottom line is that service by email is not permissible for any defendant that is an alter ego of the state, or an instrumentality of the state.1 China has objected to service by postal channels under Article 10 of the Convention, and service by email is permissible under the Convention, if at all, only if one conceives of email as part of the postal channel. Here is a good explanation of the issue, and you can also find many posts on the topic in this archive. Thus the service of process on these defendants was improper, and the resulting judgment (in my view) void.2Missouri served the Chinese state itself, and several entities that are deemed to be a part of the Chinese state for these purposes, through the diplomatic channel. That seems okay, since the Chinese government refused, under Article 13 of the Convention, to execute the request for service of process, and since China has objected to service by postal channels, making service by mail on the Minister of Foreign Affairs unavailable.

Foreign Sovereign Immunity

Although the district court originally dismissed the complaint in its entirety on FSIA grounds, the Eighth Circuit reversed as to one claim—the claim that China hoarded PPE in the early stages of the pandemic. The gist of the claim is that China nationalized factories that made PPE for American companies. The Eighth Circuit thought that that claim came within the commercial activity exception to foreign sovereign immunity. But that seems absurd to me, since nationalization of property is a quintessentially sovereign act, and it’s hard to think of a better example than nationalization of property in order to marshal resources to respond to a public health emergency. Looking to the nature of the act rather than the purpose, as the commercial activity exception requires, we must note that only governments can nationalize property; it’s not something a commercial enterprise can do.3There is an expropriation exception to FSIA immunity, which I covered in a recent post on Hungary v. Simon. But the claim here wasn’t brought by any American company whose property was allegedly expropriated, and it’s not even clear to me that the American company owned the factories: the allegation, as recounted by the Eighth Circuit, was that China “took over factors that ma[de] masks on behalf of American companies.” So I think the premise of the Eighth Circuit’s decision was plainly wrong.

Reciprocal self interest

When we think about these cases, we have to think about what it would be like if the shoe were on the other foot. In 2021, the US and other western countries were accused of hoarding the COVID vaccine. Should the United States have been amenable to suit in China or elsewhere because it prioritized the public health needs of its own people? The technical term for taking seriously the question, “what if the shoe were on the other foot?” is comity. We need more of it.

• 1 See my prior post on the case for a discussion of this point. The bottom line is that service by email is not permissible for any defendant that is an alter ego of the state, or an instrumentality of the state.1 China has objected to service by postal channels under Article 10 of the Convention, and service by email is permissible under the Convention, if at all, only if one conceives of email as part of the postal channel. Here is a good explanation of the issue, and you can also find many posts on the topic in this archive. Thus the service of process on these defendants was improper, and the resulting judgment (in my view) void.2Missouri served the Chinese state itself, and several entities that are deemed to be a part of the Chinese state for these purposes, through the diplomatic channel. That seems okay, since the Chinese government refused, under Article 13 of the Convention, to execute the request for service of process, and since China has objected to service by postal channels, making service by mail on the Minister of Foreign Affairs unavailable.
• 2
• 3 There is an expropriation exception to FSIA immunity, which I covered in a recent post on Hungary v. Simon. But the claim here wasn’t brought by any American company whose property was allegedly expropriated, and it’s not even clear to me that the American company owned the factories: the allegation, as recounted by the Eighth Circuit, was that China “took over factors that ma[de] masks on behalf of American companies.”

#China #Email #FSIA #HagueServiceConvention

Case of the Day: Missouri v. China

During COVID I wrote about what I regarded as an absurd case: the state of Missouri suing China and Chinese government instrumentalities for damages arising from the pandemic. I thought the case was absurd mainly because of foreign sovereign immunity, but also because the service of process on the two arguably non-governmental defendants was bad. But we live in absurd times, and as I reported in an earlier post, after the district court dismissed the action on FSIA grounds, the Eighth Circuit revived one of the claims, a claim that China had hoarded PPE by nationalizing factories that had been producing PPE for US firms, thus violating US antitrust law and Missouri law. On remand, the district court has now granted a default judgment for Missouri for nearly $25 billion in damages. I continue to think this is a case that should never have been brought. And although the case attracted some amicus attention, I think that US judges need to do better, in cases where the foreign state does not appear, to get the law of foreign sovereign immunity right, especially in such a politically fraught, high dollar-value case.

Service of Process

As we know, China and the United States are parties to the Hague Service Convention. The Supreme Court has held that the Convention is mandatory, or in the terms more often used internationally, exclusive. That means that if the Convention applies, then the plaintiff must serve process using one of the methods that the Convention authorizes, or at least permits. The Federal Rules of Civil Procedure reflect this rule. FRCP 4(f)(3) allows the court to authorize alternate methods of service, even if they violate foreign law, but not if they violate the Convention.

Missouri served process on the Chinese Communist Party, the Chinese Academy of Sciences, and the Wuhan Institute of Virology by email, after seeking and receiving permission from the court under FRCP 4(f)(3). Leaving aside the question of whether any of these defendants is an instrumentality of the Chinese state (it is hard to see how the Chinese Communist Party would not be at least an instrumentality of the state),1See my prior post on the case for a discussion of this point. The bottom line is that service by email is not permissible for any defendant that is an alter ego of the state, or an instrumentality of the state.1 China has objected to service by postal channels under Article 10 of the Convention, and service by email is permissible under the Convention, if at all, only if one conceives of email as part of the postal channel. Here is a good explanation of the issue, and you can also find many posts on the topic in this archive. Thus the service of process on these defendants was improper, and the resulting judgment (in my view) void.2Missouri served the Chinese state itself, and several entities that are deemed to be a part of the Chinese state for these purposes, through the diplomatic channel. That seems okay, since the Chinese government refused, under Article 13 of the Convention, to execute the request for service of process, and since China has objected to service by postal channels, making service by mail on the Minister of Foreign Affairs unavailable.

Foreign Sovereign Immunity

Although the district court originally dismissed the complaint in its entirety on FSIA grounds, the Eighth Circuit reversed as to one claim—the claim that China hoarded PPE in the early stages of the pandemic. The gist of the claim is that China nationalized factories that made PPE for American companies. The Eighth Circuit thought that that claim came within the commercial activity exception to foreign sovereign immunity. But that seems absurd to me, since nationalization of property is a quintessentially sovereign act, and it’s hard to think of a better example than nationalization of property in order to marshal resources to respond to a public health emergency. Looking to the nature of the act rather than the purpose, as the commercial activity exception requires, we must note that only governments can nationalize property; it’s not something a commercial enterprise can do.3There is an expropriation exception to FSIA immunity, which I covered in a recent post on Hungary v. Simon. But the claim here wasn’t brought by any American company whose property was allegedly expropriated, and it’s not even clear to me that the American company owned the factories: the allegation, as recounted by the Eighth Circuit, was that China “took over factors that ma[de] masks on behalf of American companies.” So I think the premise of the Eighth Circuit’s decision was plainly wrong.

Reciprocal self interest

When we think about these cases, we have to think about what it would be like if the shoe were on the other foot. In 2021, the US and other western countries were accused of hoarding the COVID vaccine. Should the United States have been amenable to suit in China or elsewhere because it prioritized the public health needs of its own people? The technical term for taking seriously the question, “what if the shoe were on the other foot?” is comity. We need more of it.

• 1 See my prior post on the case for a discussion of this point. The bottom line is that service by email is not permissible for any defendant that is an alter ego of the state, or an instrumentality of the state.1 China has objected to service by postal channels under Article 10 of the Convention, and service by email is permissible under the Convention, if at all, only if one conceives of email as part of the postal channel. Here is a good explanation of the issue, and you can also find many posts on the topic in this archive. Thus the service of process on these defendants was improper, and the resulting judgment (in my view) void.2Missouri served the Chinese state itself, and several entities that are deemed to be a part of the Chinese state for these purposes, through the diplomatic channel. That seems okay, since the Chinese government refused, under Article 13 of the Convention, to execute the request for service of process, and since China has objected to service by postal channels, making service by mail on the Minister of Foreign Affairs unavailable.
• 2
• 3 There is an expropriation exception to FSIA immunity, which I covered in a recent post on Hungary v. Simon. But the claim here wasn’t brought by any American company whose property was allegedly expropriated, and it’s not even clear to me that the American company owned the factories: the allegation, as recounted by the Eighth Circuit, was that China “took over factors that ma[de] masks on behalf of American companies.”

#China #Email #FSIA #HagueServiceConvention