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The Scope of Expropriation Exception under the United States Foreign Sovereign Immunities Act

  • Journal of International Business Transactions Law
  • Abbr : IBT
  • 2021, (35), pp.199-226
  • DOI : 10.31839/ibt.2021.10.35.199
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law > Private Law > International Commercial Transactions Law
  • Received : September 30, 2021
  • Accepted : October 27, 2021
  • Published : October 31, 2021

Young-Ran Choi 1

1원광대학교

Accredited

ABSTRACT

In 2021, the United State Supreme Court in Federal Republic of Germany v. Philipp ruled on expropriation exception of the Foreign Sovereign Immunities Act and the domestic takings rule. The FSIA confers a U.S. court jurisdiction over a foreign government if the government expropriated property in violation of international law. The domestic takings rule assumes that what a country does to property belonging to its own citizens within its own borders is not the subject of international law. The Court concluded that taking property of a foreign government’s own nationals shall not be regarded as an expropriation exception even though the expropriation was conducted as genocide. This ruling abrogated previous rulings of lower courts which did not apply the domestic takings rule in case of genocide. This recent decision probably severely affects any pending or potential lawsuits to obtain jurisdiction over the perpetrators of atrocious crimes against humanity including the Nazi and the Imperial Japanese government before or during World War II. This paper looks over the FSIA’s development, relevant provisions of immunity and exceptions to the jurisdictional immunity. Focusing on the discussion on expropriation exception, the paper reviews the genocide exception and the domestic takings rule.

Citation status

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