Supreme Court Commentaries
Foreign Sovereignty, FSIA
Constitutional Law | International Law
The Foreign Sovereign Immunities Act (FSIA) generally prevents foreign sovereigns from falling within the jurisdiction of U.S. courts, subject to exceptions the FSIA lists. This commentary analyzes BB Personenverkehr AG v. Sachs, a case before the Supreme Court on the question of whether the commercial activities exception of the FSIA applies when only one element of a plaintiff's claim is based upon commercial activity occurring in the United States and whether that sale can be attributed to a foreign sovereign. In this case, the plaintiff purchased a rail pass through an online, third-party travel agent. While traveling abroad and using the rail service, the plaintiff suffered severe physical injuries. The plaintiff then sued in U.S. courts for damages resulting from those injuries, arguing that the purchase of the ticket constituted commercial activity and that the ticket was sold by an agent of the rail service. The Author reviews the facts of the case and current law and concludes that the Court should rule in favor of the petitioners and hold that the sale of the ticket does meet the commercial-activity exception of the FSIA but that because a third-party sold the ticket, that action cannot be attributed to the state-owned rail service.
Daniel R. Echeverri, Six Degrees of Separation: Attribution Under the Foreign Sovereign Immunities Act in OBB Personenverkehr AG v. Sachs, 11 Duke Journal of Constitutional Law & Public Policy Sidebar 1-20 (2015)