Foreign Sovereign Immunity In International Construction

For hundreds of years, the world’s sovereign nations refused to allow any other foreign sovereign to be sued in their courts without the sovereign’s consent. The guiding principle was “absolute sovereign immunity,” an outgrowth of the ancient legal precept rex non potest peccare, understood to mean “the king can do no wrong.” The principle also was recognized as wise foreign policy because it extended "grace and comity" to other sovereigns.    

In 1976, Congress enacted the Foreign Sovereign Immunities Act of 1976 (FSIA) at 28 USC §§ 1330, 1332, 1391(f), 1441(d) and 1602-1611, which, for the most part, is the basis for obtaining jurisdiction over a foreign state in our courts. The FSIA imposes a brightline rule: Foreign states and their instrumentalities are immune from suit unless one of the act’s enumerated exceptions applies. These exceptions include claims based on commercial activities with a specified nexus to the United States and claims in arbitration and enforcement of