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ty in almost every instance. However, the executive branch learned that almost every country in Western Europe followed the restrictive principle of sovereign immunity and the Government's pleas of immunity were routinely denied in tort and contract cases where the necessary contacts with the forum were present. Thus, in the 1960's, it became the practice of the Department of Justice to avoid claiming immunity when the United States was sued in countries that had adopted the restrictive principle of immunity, but to invoke immunity in those remaining countries that still held to the absolute immunity doctrine. Beginning in the early 1970's, it became the consistent practice of the Department of Justice not to plead sovereign immunity abroad in instances where, under the Tate letter standards, the Department would not recognize a foreign state's immunity in this country.
In virtually every country, the United States has found that sovereign immunity is a question of international law to be determined by the courts. The United States cannot take recourse to a foreign affairs agency abroad as other states have done in this country when they seek a suggestion of immunity from the Department of State.
CONCLUSION On the basis of the facts outlined in the executive communication (of October 31, 1975; see the 1975 Digest, p. 346) and the testimony at the hearings on the bill, the committee finds that there is a clearly defined need for the enactment of these provisions into law....
S. Rept. 94-1310 and H. Rept. 94-1487, 94th Cong., 2d Sess. The reports supply a section-by-section analysis of the bill as favorably reported. For the substance of that analysis, see also the 1975 Digest, pp. 353-368. The Subcommittee on Administrative Law and Government Relations, House Committee on the Judiciary, held hearings on H.R. 11315, at which representatives of the Dept. of State and the Dept. of Justice testified. For a statement by President Ford on signing the Foreign Sovereign Immunities Act, see ante, Ch. 1, § 3, p. 1. For excerpts from the testimony of Monroe Leigh, Legal Adviser of the Dept. of State, and Bruno Ristau, Chief, Foreign Litigation Section, Civil Division, Dept. of Justice, see American Journal of International Law, Vol. 70, No. 3, Oct. 1976, pp. 817-820.
The Department of State issued a notice on November 10, 1976, of its policy with respect to the immunity of foreign states in U.S. courts, in light of the Foreign Sovereign Immunities Act of 1976(P.L. 94-583). The notice sets forth a letter of November 2, 1976, to the Attorney General from Monroe Leigh, Legal Adviser of the Department, which states how the Department proposes to treat questions of foreign state immunity, both before and after the effective date of P.L. 94-583. The text of the letter follows:
DEAR MR. ATTORNEY GENERAL:Since the Tate Letter of 1952, 26 Dept. State Bull. 984, my predecessors and I have endeavored to keep your Department apprised of Department of State policy and practice with respect to the sovereign immunity of foreign states from the jurisdiction of United States courts. On October 21, 1976,
the President signed into law the Foreign Sovereign Immunities Act of 1976, P.L. 94-583. This legislation, which was drafted by both of our Departments, has as one of its objectives the elimination of the State Department's current responsibility in making sovereign immunity determinations. In accordance with the practice in most other countries, the statute places the responsibility for deciding sovereign immunity issues exclusively with the courts.
P.L. 94-583 is to go into effect 90 days from the date it was approved by the President, or on January 19, 1977. We wish to advise you of how the Department of State proposes to treat sovereign immunity requests prior to January 19, 1977, and what the Department of State's interests will be after that date.
Immunity from suit. Until January 19, 1977, the Department of State will apply the Tate Letter, in the event that it makes any determination with respect to a foreign government's immunity from suit. It should be noted that P.L. 94-583 embodies in many respects the practice under the Tate Letter.
Immunity from attachment. Until January 19, 1977, the Department will continue to give prompt attention to diplomatic requests from foreign states, for recognition of immunity of foreign government property from attachment. The Department of State's policy until now has been to recognize an immunity of all foreign government property from attachment-unless (1) the property in question is devoted to a commercial or private use; (2) the underlying lawsuit is based on a commercial or private activity of the foreign state; and (3) the purpose of the attachment is to commence a lawsuit and not to assure satisfaction of a final judgment.
The Department does not contemplate changing this policy before P.L. 94-583 takes effect. We have noted that until P.L. 94-583 takes effect, it may be difficult for a private litigant to commence a suit against a foreign state or its entities. Also, since P.L. 94-583 will not have any effect whatsoever on the running of the statute of limitations, a continuation of existing policy on attachment until January 19, 1977, might be the only way a claim for relief could be preserved.
P.L. 94-583 will make two important and related changes in the Department's sovereign immunity practice with respect to attachment. First, the statute will prescribe a means for commencing a suit against a foreign state and its entities by service of a summons and complaint, thus making jurisdictional attachments of foreign government property unnecessary.
Second, Section 1609 of the statute will provide an absolute immunity of foreign government property from jurisdictional attachment. Such jurisdictional attachments have given rise to diplomatic irritants in the past and, in recent years, have been the principal impetus for a Department of State role in sovereign immunity determinations. It appears that after January 19, 1977, any jurisdictional attachment of foreign government property could, under Section 1609 of P.L. 94-583, be promptly vacated upon motion to the appropriate court by the foreign state defendant.
Immunity from execution. The Department of State has in the past recognized an absolute immunity of foreign government property from execution to satisfy a final judgment. The Department does not contemplate changing this policy in the period before January 19, 1977. On or after that date, execution may be obtained against foreign government property only upon court order and in conformity with the other requirements of Section 1610 of P.L. 94-583.
Future Department of State interests. The Department of State will not make any sovereign immunity determinations after the effective date of P.L. 94-583. Indeed, it would be inconsistent with the legislative intent of that Act for the executive branch to file any suggestion of immunity on or after January 19, 1977.
After P.L. 94-583 takes effect, the executive branch will, of course, play the same role in sovereign immunity cases that it does in other types of litigation-e.g., appearing as amicus curiae in cases of significant interest to the Government. Judicial construction of the new statute will be of general interest to the Department of State, since the statute, like the Tate Letter, endeavors to incorporate international law on sovereign immunity into domestic United States law and practice. If a court should misconstrue the new statute, the United States may well have an interest in making its views on the legal issues known to an appellate court.
Finally, we wish to express appreciation for the continuous advice and support which your Department has provided during the ten years of work and consultation that led to the enactment of P.L. 94-593. We believe that the new statute will be a significant step in the growth of international order under law, to which the United States has always been committed.
Fed. Reg., Vol. 41, No. 224, Nov. 18, 1976, pp. 50883-50884; Dept. of State Bulletin, Vol. LXXV, No. 1952, Nov. 22, 1976, pp. 649-650.
Regulations were issued by the Department of State on January 19, 1977, pursuant to section 4 of the Foreign Sovereign Immunities Act of 1976 (28 U.S.C. 1608(a)), prescribing the form of a “Notice of Suit" which, in certain circumstances, would accompany the service of a summons and complaint on a foreign state or its political subdivisions. Also included were regulations on the transmittal of certain papers through diplomatic channels in prescribed circumstances. The regulations constitute a new part 93–Service on Foreign State-of subpart J of title 22 of the Code of Federal Regulations.
The text of the new regulations is as follows:
Title 22 of the Code of Federal Regulations is amended by adding a new part 93 to subchapter J and by changing the title of subchapter J to read as follows:
SUBCHAPTER J-LEGAL AND RELATED SERVICES
PART 93-SERVICE ON FOREIGN STATE Sec. 93.1 Service through the diplomatic channel. 93.2 Notice of Suit (or of default judgment).
AUTHORITY: Sec. 1608(a), Foreign Sovereign Immunities Act of 1976, Pub. L. 94-583 (28 U.S.C. 1608(a)); sec. 4, 63 Stat. 111, as amended (22 U.S.C. 2658). § 93.1 Service through the diplomatic channel.
(a) The Director of the Office of Special Consular Services in the Bureau of Security and Consular Affairs, Department of State ("The Director of Special Consular Services"), shall perform the duties of the Secretary of State under section 1608(a) (4) of Title 28, United States Code.
(b) When the clerk of the court concerned sends documents under section 1608(a) (4), of Title 28, United States Code, the Director of Special Consular Services shall promptly ascertain if the documents include the required copies of the notice of suit and of the summons and complaint (or default judgment), and any required translations. If not, he shall promptly advise the clerk of the missing items.
(c) Upon receiving the required copies of documents and any required translations, the Director of Special Consular Services shall promptly cause one copy of each such document and translation ("the documents") to be delivered
(1) To the Embassy of the United States in the foreign state concerned, and the Embassy shall promptly deliver them to the foreign ministry or other appropriate authority of the foreign state, or
(2) If the foreign state so requests or if otherwise appropriate, to the embassy of the foreign state in the District of Columbia, or
(3) If (1) and (2) are unavailable, through an existing diplomatic channel, such as to the embassy of another country authorized to represent the interests of the foreign state concerned in the United States.
(d) The documents, when delivered under paragraph (c) of this section, shall be accompanied by a diplomatic note of transmittal, requesting that the documents be forwarded to the appropriate authority of the foreign state or political subdivision upon which service is being made. The note shall state that, under United States law, questions of jurisdiction and of state immunity must be addressed to the court and not to the Department of State, and that it is advisable to consult with an attorney in the United States.
(e) If the documents are delivered under paragraph (c) (1) of this section, the Embassy of the United States shall promptly transmit by diplomatic pouch, to the Director of Special Consular Services, a certified copy of the diplomatic note of transmittal. If the documents are delivered under paragraph (c) (2) or (3) of this section, the Director of Special Consular Services shall prepare a certified copy of the diplomatic note of transmittal. In each case, the certification shall state the date and place the documents were delivered. The Director of Special Consular Services shall then promptly send the certified copy to the clerk of the court concerned.
§ 93.2 Notice of suit (or of default judgment).
(a) A Notice of Suit prescribed in section 1608(a) of Title 28, United States Code, shall be prepared in the form that appears in the Annex to this section.
(b) In preparing a Notice of Suit, a party shall in every instance supply the information specified in items 1 through 5 of the form appearing in the Annex to this section. A party shall also supply information specified in item 6, if notice of a default judgment is being served.
(c) In supplying the information specified in item 5, a party shall in simplified language summarize the nature and purpose of the proceeding (including principal allegations and claimed bases of liability), the reasons why the foreign state or political subdivision has been named as a party in the proceeding, and the nature and amount of relief sought. The purpose of item 5 is to enable foreign officials unfamiliar with American legal documents to ascertain the above information. (d) A party may attach additional pages to the Notice of Suit to complete information under any item.
(e) A party shall attach, as part of the Notice of Suit, a copy of the Foreign Sovereign Immunities Act of 1976 (Pub. L. 94-583; Stat. 2891).
NOTICE OF SUIT
(OR OF DEFAULT JUDGMENT)
1. Title of legal proceeding; full name of court; case or docket number. 2. Name of foreign state (or political subdivision) concerned:
3. Identity of the other Parties:
4. Nature of documents served (e.g., Summons and Complaint; Default Judgment):
5. Nature and purpose of the proceedings; why the foreign state (or political subdivision) has been named; relief requested:
6. Date of default judgment (if any);
7. A response to a "Summons” and “Complaint” is required to be submitted to the court, not later than 60 days after these documents are received. The response may present jurisdictional defenses (including defenses relating to state immunity).
8. The failure to submit a timely response with the court can result in a Default Judgment and a request for execution to satisfy the judgment. If a default judgment has been entered, a procedure may be available to vacate or open that judgment.
9. Questions relating to state immunities and to the jurisdiction of United States courts over foreign states are governed by the Foreign Sovereign Immunities Act of 1976, which appears in sections 1330, 1391(f), 1441 (d), and 1602 through 1611, of Title 28, United States Code (Pub. L. 94-583; 90 Stat. 2891). Fed. Reg., Vol. 42, No. 22, Feb. 2, 1977, p. 6367.
By a circular note dated December 10, 1976, the Department of State informed all foreign embassies in Washington of the enactment of the Foreign Sovereign Immunities Act and called their attention to significant aspects of the legislation, as follows:
1. The legislation will not make substantial changes in United States law on the question of when a foreign state has immunity from suit. The legislation incorporates the restrictive doctrine of sovereign immunity which the United States has consistently followed since the Tate Letter of 1952, as the appropriate rule of modern international law. It has been the practice of the United States Government, since 1973, not to claim immunity for itself in foreign courts in any case when immunity would not be accorded to a foreign state under the new legislation.
2. The new legislation will eliminate the current practice in the United States of seizing or attaching foreign government property, as a method for obtaining jurisdiction against a foreign state or its entities. Section 1609 of the statute affords an absolute immunity from such jurisdictional attachments.
3. In addition to questions of state immunity, the new legislation will also prescribe the jurisdiction of Federal courts in the United States over foreign states and their agencies and instrumentalities. Under the statute, jurisdiction does not arise from the attachment of property, or from the service of process. Instead, jurisdiction depends on the existence of some connection (or contact) between the United States and the events giving rise to the litigation. These required connections (or contacts) are mentioned in the text of section 1605 of the statute. They are also incorporated by reference into the jurisdictional provisions of section 1330.
4. The statute also requires that adequate notice of a suit be given to the foreign state. This notice must be given by the service of judicial documents (in particular, a summons and complaint) in accordance with section 1608 of the statute. This service of notice, again, does not confer jurisdiction, but is intended to inform the foreign state of the existence of the legal proceeding. It should also be noted that section 1608(a) (4) of the statute requires the Department of State to deliver this notice through diplomatic channels, in cases where other methods of service are unavailable.
5. The new legislation will provide, under limited circumstances, for execution against certain commercial and commercially related property, in order to satisfy a final judgment against a