International Construction Law Review
FOREIGN SOVEREIGN IMMUNITY: ITS RELEVANCE TO INTERNATIONAL CONSTRUCTION IN THE 21ST CENTURY
PHILIP L. BRUNER*
Arbitrator and Mediator
1. INTRODUCTION
For hundreds of years up to the 20th century, the world’s sovereign nations refused to permit 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 recognised as wise foreign policy because it extended “grace and comity” to other sovereigns.1 It often was called “common law” immunity.2
Beginning in the 20th century, the US and some other nation states began to apply a more defined “restrictive approach” to the granting of foreign sovereign immunity. In 1952 the US Department of State began espousing some restrictions to the right of immunity granted to foreign sovereigns. Other nations did so as well.3 In 1976 the US formally adopted a “restrictive approach” by enactment of The Foreign Sovereign Immunity
* Philip Bruner is an arbitrator and mediator of international and domestic disputes arising in the construction fi eld and is Director of the JAMS Global Engineering and Construction panel of neutrals. He is a member of the Editorial Advisory Board of the International Construction Law Review, Chartered Arbitrator of the Chartered Institute of Arbitrators, Arbitrator Fellow of Britian’s Society of Construction Arbitrators, Fellow of the College Commercial Arbitrators, Fellow and Past-President of the American College of Construction Lawyers, Honorary Fellow of the Canadian College of Construction Lawyers, Fellow of the International Academy of Construction Lawyers, and Fellow of the American Bar Foundation. He is co-author with Patrick O’Connor Jr of Bruner and O’Connor on Construction Law (updated annually), the 12,600-page legal treatise cited in over 600 American judicial opinions.
1 See, The Schooner Exchange v McFadden 11 U.S (7 Cranch) 116, 3 L. Ed. 287 (1812) (“The US has impliedly waived jurisdiction over certain activities of foreign sovereign … as a matter of grace and comity”); National City Bank v Republic of China 348 U.S. 356, 75 S. Ct. 423, 99 L. Ed. 389 (1955) (noting that granting immunity to foreign sovereigns “dovetails” with our own interest in similar treatment); Opati v Republic of Sudan 140 S. Ct. 1601, 206 L. Ed.2d 904 (Sup. Ct. 2020). See also Joseph Dellapenna, Suing Foreign Governments and Their Corporations (2nd Edition 2003).
2 See, United States v Bankasi 120 F. 4th 41 (2d Cir 2024) (holding that “common law” indemnity, addressed only outside of the FSIA, does not protect foreign sovereigns from criminal prosecution).
3 See, Verlinden B V v Central Bank of Nigeria, 461 U.S 480, 487–492, 103 S. Ct. 1962, 76 L. Ed. 2d 81 (Sup. Ct. 1983). Brief summaries of various approaches to foreign sovereign immunity taken by 24 nations can be found in a search engine search under “sovereign immunity”. The nations listed are Australia, Belgium, Bhutan, Canada, China and Hong Kong, Denmark, Finland, Holy See, Iceland, India, Ireland, Italy Japan, Malaysia, Netherlands, Nigeria, Norway, Philippines, Spain, Sri Lanka, Sweden, Singapore, UK and US.
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