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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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