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11 Duke J. Const. L. & Pub. Pol'y Sidebar 1 (2015-2016)

handle is hein.journals/dukjppsid11 and id is 1 raw text is: SIX DEGREES OF SEPARATION: ATTRIBUTION UNDER THE FOREIGN SOVEREIGN IMMUNITIES ACT IN OBB PERSONENVERKEHR AG V. SACHS DANIEL R. ECHEVERRI* INTRODUCTION In 1810, Napoleon captured an American ship, strapped arms to it, and absorbed it into the French naval fleet. When two American citizens sought to recover the vessel, a unanimous Court relied on customary international law and held France, as a foreign sovereign, was exempt from suit.' Since then, foreign sovereign immunity has been a staple of both American common law and international law. The Foreign Sovereign Immunities Act (FSIA) is the modern United States law.2 Foreign sovereigns are generally immune from suit.3 Recently, the commercial-activity exception' has become a significant point of contention in the federal courts.! This exception allows a foreign sovereign to be sued in cases where the action is based upon a * J.D. and LL.M. Candidate, Duke University School of Law, Class of 2017. 1. Schooner Exch. v. McFaddon, 11 U.S. (7 Cranch) 116, 146-47 (1812) (holding that foreign sovereign immunity, as exemplified in customary international law, applied to a vessel owned by American citizens that was seized by the French military and removed the former owners' claim over the ship). 2. Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1602-11 (2012). 3. Id. § 1604; but see id. §§ 1605-1605A (establishing exceptions to foreign sovereign immunity). 4. Id. § 1605(a)(2). 5. See Saudi Arabia v. Nelson, 507 U.S. 349 (1993) (holding a contract with an instrumentality of a foreign sovereign is insufficient to satisfy the exception); Republic of Argentina v. Weltover, Inc., 504 U.S. 607 (1992) (holding a foreign sovereign is not liable under the exception when it regulates foreign currency exchange); Kirkham v. Societe Air France, 429 F.3d 288 (D.C. Cir. 2005) (holding a ticket sale by a third party in the United States is sufficient to satisfy the commercial-activity exception); Sun v. Taiwan, 201 F.3d 1105 (9th Cir. 2000) (same).

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