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Foreign Sovereign Immunity and COVID-19

Lawsuits Against China



May 15, 2020
Putative classes of plaintiffs have launched at least five class action lawsuits against the government of
the People's Republic of China (PRC or China) for losses in the United States associated with the
COVID-19 pandemic. Two states-Missouri and Mississippi-have also lodged claims in federal court
against China and Chinese entities for COVID-19 associated losses in those states. The lawsuits
essentially allege that the PRC government's early failure to accurately inform the World Health
Organization and the world community about the contagiousness and scope of outbreak of the disease in
China, along with other actions to conceal vital information, prevented containment of the coronavirus
and directly led to its reaching global pandemic proportions. Each of these lawsuits faces a common
initial hurdle: jurisdiction under the Foreign Sovereign Immunities Act (FSIA). This Legal Sidebar
analyzes two possible exceptions under the FSIA that these lawsuits have asserted as a jurisdictional basis
and describes some legislative efforts to overcome foreign sovereign immunity. Because the complaints
are similar but the Missouri complaint seems to be the most detailed in its foreign sovereign immunity
claims, this Legal Sidebar focuses on the lawsuit by the State of Missouri.


Foreign Sovereign Immunity

As is the case in most countries and in accordance with international law, foreign sovereign governments
are generally immune from lawsuits in the United States. As the Supreme Court explained, Congress
enacted the FSIA in 1976 in part to relieve the executive branch of the burden and diplomatic pressure of
providing official statements known as suggestions of immunity on whether foreign sovereign
immunity barred U.S. courts from exercising jurisdiction over a foreign government in a particular suit.
The FSIA provides a comprehensive set of standards to guide courts with respect to foreign sovereign
immunity. The Supreme Court has held that the sole basis by which U.S. courts (federal and state) may
obtain jurisdiction over a foreign state, including its agencies and instrumentalities, is through an
exception under the FSIA. When one of the exceptions applies, the foreign state shall be liable in the
same manner and to the same extent as a private individual under like circumstances, except that
punitive damages are available only against an agency or instrumentality of a foreign state.
The essence of the allegations against China, as set forth in Missouri's complaint, is that

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