§ 1605. — General exceptions to the jurisdictional immunity of a foreign state.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 28USC1605]
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
PART IV--JURISDICTION AND VENUE
CHAPTER 97--JURISDICTIONAL IMMUNITIES OF FOREIGN STATES
Sec. 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.
(Added Pub. L. 94-583, Sec. 4(a), Oct. 21, 1976, 90 Stat. 2892; amended
Pub. L. 100-640, Sec. 1, Nov. 9, 1988, 102 Stat. 3333; Pub. L. 100-669,
Sec. 2, Nov. 16, 1988, 102 Stat. 3969; Pub. L. 101-650, title III,
Sec. 325(b)(8), Dec. 1, 1990, 104 Stat. 5121; Pub. L. 104-132, title II,
Sec. 221(a), Apr. 24, 1996, 110 Stat. 1241; Pub. L. 105-11, Apr. 25,
1997, 111 Stat. 22; Pub. L. 107-77, title VI, Sec. 626(c), Nov. 28,
2001, 115 Stat. 803; Pub. L. 107-117, div. B, Sec. 208, Jan. 10, 2002,
115 Stat. 2299.)
References in Text
Section 101(a)(22) of the Immigration and Nationality Act, referred
to in subsec. (a)(7)(B)(ii), is classified to section 1101(a)(22) of
Title 8, Aliens and Nationality.
The Ship Mortgage Act, 1920, referred to in subsec. (d), is section
30 of act June 5, 1920, ch. 250, 41 Stat. 1000, as amended, which was
classified generally to chapter 25 (Sec. 911 et seq.) of former Title
46, Shipping, and was repealed by Pub. L. 100-710, title I,
Sec. 106(b)(2), Nov. 23, 1988, 102 Stat. 4752, and reenacted by section
102(c) thereof as chapters 301 and 313 of Title 46, Shipping.
Section 3 of the Torture Victim Protection Act of 1991, referred to
in subsec. (e)(1), is section 3 of Pub. L. 102-256, Mar. 12, 1992, 106
Stat. 73, which is set out in a note under section 1350 of this title.
Rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure,
referred to in subsec. (g)(4), are set out in the Appendix to this
title.
Amendments
2002--Subsec. (a)(7)(A). Pub. L. 107-117 amended Pub. L. 107-77. See
2001 Amendment note below.
2001--Subsec. (a)(7)(A). Pub. L. 107-77, as amended by Pub. L. 107-
117, inserted before semicolon ``or the act is related to Case Number
1:00CV03110(EGS) in the United States District Court for the District of
Columbia''.
1997--Subsec. (a)(7)(B)(ii). Pub. L. 105-11 substituted ``neither
the claimant nor the victim was'' for ``the claimant or victim was
not''.
1996--Subsec. (a)(7). Pub. L. 104-132, Sec. 221(a)(1), added par.
(7).
Subsecs. (e) to (g). Pub. L. 104-132, Sec. 221(a)(2), added subsecs.
(e) to (g).
1990--Subsec. (a)(6). Pub. L. 101-650 substituted ``state'' for
``State'' after ``foreign''.
1988--Subsec. (a)(6). Pub. L. 100-669 added par. (6).
Subsec. (b). Pub. L. 100-702, Sec. 1(3), struck out at end
``Whenever notice is delivered under subsection (b)(1) of this section,
the maritime lien shall thereafter be deemed to be an in personam claim
against the foreign state which at that time owns the vessel or cargo
involved: Provided, That a 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 to be determined as of
the time notice is served under subsection (b)(1) of this section.''
Subsec. (b)(1). Pub. L. 100-640, Sec. 1(1), substituted ``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'' for ``but such notice shall not be deemed
to have been delivered, nor may it thereafter be delivered, if the
vessel or cargo is arrested pursuant to process obtained on behalf of
the party bringing the suit--unless the party was unaware that the
vessel or cargo of a foreign state was involved, in which event the
service of process of arrest shall be deemed to constitute valid
delivery of such notice''.
Subsec. (b)(2). Pub. L. 100-640, Sec. 1(2), substituted ``paragraph
(1) of this subsection'' for ``subsection (b)(1) of this section''.
Subsecs. (c), (d). Pub. L. 100-702, Sec. 1(3), added subsecs. (c)
and (d).
Effective Date of 1997 Amendment
Pub. L. 105-11 provided that the amendment made by that Act was
effective with respect to any cause of action arising before, on, or
after Apr. 25, 1997.
Effective Date of 1996 Amendment
Section 221(c) of title II of Pub. L. 104-132 provided that: ``The
amendments made by this subtitle [subtitle B (Sec. 221) of title II of
Pub. L. 104-132, amending this section and section 1610 of this title]
shall apply to any cause of action arising before, on, or after the date
of the enactment of this Act [Apr. 24, 1996].''
Effective Date of 1988 Amendment
Section 3 of Pub. L. 100-640 provided that: ``The amendments made by
this Act [amending this section and section 1610 of this title] shall
apply to actions commenced on or after the date of the enactment of this
Act [Nov. 9, 1988].''
Civil Liability for Acts of State Sponsored Terrorism
Pub. L. 104-208, div. A, title I, Sec. 101(c) [title V, Sec. 589],
Sept. 30, 1996, 110 Stat. 3009-121, 3009-172, provided that:
``(a) an [sic] official, employee, or agent of a foreign state
designated as a state sponsor of terrorism designated [sic] under
section 6(j) of the Export Administration Act of 1979 [50 App. U.S.C.
2405(j)] while acting within the scope of his or her office, employment,
or agency shall be liable to a United States national or the national's
legal representative for personal injury or death caused by acts of that
official, employee, or agent for which the courts of the United States
may maintain jurisdiction under section 1605(a)(7) of title 28, United
States Code, for money damages which may include economic damages,
solatium, pain, and suffering, and punitive damages if the acts were
among those described in section 1605(a)(7).
``(b) Provisions related to statute of limitations and limitations
on discovery that would apply to an action brought under 28 U.S.C.
1605(f) and (g) shall also apply to actions brought under this section.
No action shall be maintained under this action [sic] if an official,
employee, or agent of the United States, while acting within the scope
of his or her office, employment, or agency would not be liable for such
acts if carried out within the United States.''
Section Referred to in Other Sections
This section is referred to in sections 1330, 1391, 1604, 1606,
1607, 1610 of this title; title 15 section 15.
