A New Frontera: Foreign Sovereign Immunity, Arbitral Awards and a Waive Goodbye to Assets

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From the time of its enactment until the beginning of the twenty-first century, the Foreign Sovereign Immunities Act (FSIA) was interpreted under the assumption that covered entities—foreign sovereign nations and their agencies and instrumentalities—should be afforded the typical constitutional protections associated with personal jurisdiction.  This interpretation required a full minimum contacts analysis to establish personal jurisdiction.  In the past decade, however, momentum has shifted, and courts are increasingly holding that foreign sovereigns are not “persons” for the purposes of due process protections.  The change dictates that only the statutory requirements of the FSIA need be met to satisfy both subject matter and personal jurisdiction.  The collapsing of these formerly distinct analyses, combined with an interpretation of the FSIA’s “arbitration exception” that designates some arbitration agreements to be full waivers of immunity, may have created a substantial vulnerability for a subclass of foreign sovereign assets held in the United States.  Previously, attempts to execute against property held by agencies or instrumentalities of foreign sovereigns would have required  minimum contacts.  The current state of the law, however, suggests that a valid arbitration agreement designating a U.S. situs might now expose some of these entities to execution against any U.S.-based property, minimum contacts or no.  This Note traces the evolution of FSIA jurisprudence leading to the current state of affairs, before moving on to consider the potential ramifications this trajectory may present for foreign sovereign investment assets in the United States.