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Jam v. International Finance Corp.

  • Chimène I. Keitner (a1) and Scott Dodson (a1)

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In Jam v. International Finance Corp., the U.S. Supreme Court held that the International Organizations Immunities Act of 1945 (IOIA) affords international organizations (IOs) the same immunity from suit in U.S. courts that foreign governments currently enjoy under the Foreign Sovereign Immunities Act of 1976 (FSIA), which codifies the restrictive theory of foreign sovereign immunity. The International Finance Corporation (IFC) had argued that the IOIA, which grants international organizations the “‘same immunity’ from suit … ‘as is enjoyed by foreign governments’” (p. 15), should be understood to provide international organizations with absolute immunity, which it argued foreign governments enjoyed prior to the United States’ explicit adoption of the restrictive theory in 1952. Under the restrictive theory, a foreign state is immune from suit for its sovereign acts (acta jure imperii), but not for its commercial acts (acta jure gestionis). By interpreting language in the IOIA as granting the “same immunity” to international organizations as foreign governments enjoy at the time the suit is filed, the Supreme Court aligned the regime for IO immunity with that of foreign state immunity, except in cases where the IO's founding charter provides a different rule or where the executive branch has explicitly limited immunity. It remains to be seen what IO activities are deemed “commercial” under this regime and what types of transactions are found to have a sufficient nexus to the United States to fall within the FSIA's commercial-activity exception.

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Copyright

References

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1 Exec. Order No. 10680, 3 C.F.R. § 86 (1957); see 22 U.S.C. §§ 282, 288.

2 Articles of Agreement of the International Finance Corporation, Art. I, I(i), 7 UST 2197, TIAS No. 3620, 264 UNTS 117 (July 20, 1956).

3 28 U.S.C. § 288a(b).

4 Id. § 288.

5 The Court of Appeals for the D.C. Circuit found that a waiver of immunity in the IFC's Articles of Agreement did not waive immunity from this suit. Jam v. IFC, 860 F.3d 703, 707–08 (D.C. Cir. 2017).

6 Letter from Jack B. Tate, Acting Legal Adviser, Dept. of State, to Acting Attorney General Philip B. Perlman (May 19, 1952), reprinted in 26 Dept. State Bull. 984–85 (1952).

7 28 U.S.C. § 1602.

8 Id. § 1605(a)(2).

9 Id. § 1603(d).

10 Jam v. IFC, 860 F.3d at 705−06.

11 Brief for the United States as Amicus Curiae Supporting Reversal at 11.

12 Id.

13 Id. at 29.

14 See Articles of Agreement of the International Monetary Fund, Art. IX, § 3, 60 Stat. 1413, TIAS No. 1501 (Dec. 27, 1945) (implemented by 22 U.S.C. § 286h).

15 Convention on Privileges and Immunities of the United Nations, Art. II, § 2, 21 UST 1422, TASA No. 6900 (Feb. 13, 1946) (deemed to be self-executing).

16 See Final Report of the Independent Panel of Experts on the Cholera Outbreak in Haiti (2011).

17 See Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981).

18 Id. at 241 n. 6.

19 Id. at 250.

20 Id. at 257.

21 See In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India in Dec., 1984, 809 F.2d 195, 202 (2d Cir. 1987).

22 Brief of International Law Experts as Amici Curiae in Support of Respondent at 3.

23 Lauterpacht, Hersch, The Problem of Jurisdictional Immunities of Foreign States, 28 Brit. Y.B. Int'l L. 220, 224 (1951).

24 Brief for the United States as Amicus Curiae Supporting Reversal at 1.

25 Brief of Amici Curiae Center for International Environmental Law et al. in Support of Petitioners at 31.

Keywords

Jam v. International Finance Corp.

  • Chimène I. Keitner (a1) and Scott Dodson (a1)

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