Brief of Amici Curiae International Law Scholars in Support of Petitioners

Authors

Beatrice Lindstrom, Harvard Law School, International Human Rights Clinic
Tyler R. Giannini, Harvard Law School, International Human Rights Clinic
Diane A. Desierto, Notre Dame Law SchoolFollow

Document Type

Brief

Case Name

Budha Jam v. International Finance Corporation

Publication Date

2-14-2022

Abstract

No. 21-995
Budha Jam v. International Finance Corporation

On Petition For Writ Of Certiorari To The United States Court Of Appeals For The District Of Columbia Circuit

From the Summary of Argument

The animating purpose of the Foreign Sovereign Immunities Act (“FSIA”), 28 U.S.C. §§ 1602-1611 (1976), is to remove immunity and preferential treatment for sovereign entities when they engage in private conduct such as commercial activity. In other words, sovereigns acting as private actors should be treated as private actors. The decision below undermines this raison d’être of the FSIA while raising an important and unsettled question: whether a sovereign can claim immunity for their commercial activity when a third party’s conduct may be the more direct cause of a plaintiff ’s injuries.

Comments

Amici curiae respectfully submit this brief in support of Petitioners. Amici (listed in Appendix) are scholars of international law with expertise in sovereign and international organization immunity, including under the Foreign Sovereign Immunities Act (“FSIA”), which also governs international organizations. See 28 U.S.C. §§ 1602–1611 (1976); Jam v. Int’l Fin. Corp., 139 S. Ct. 759, 768 (2019). Amici, who include scholars with expertise in foreign jurisdictions, have a strong interest in the accurate and uniform application of the restrictive theory of sovereign immunity and the commercial activity doctrine under the FSIA. Amici are concerned that among countries that have adopted restrictive immunity, the United States would stand alone in allowing sovereigns to use the commercial activity exception as a shield to escape liability if another actor is the more proximate tortfeasor. Amici respectfully urge this Court to reconsider the decision below and bring U.S. immunity jurisprudence back in line with the FSIA’s text and purpose of eliminating preferential treatment for sovereigns involved in commercial activity.

See the listing on Appendix pages 1-3, including Notre Dame Law School's Diane A. Desierto.

Recommended Citation

Lindstrom, Beatrice; Giannini, Tyler R.; and Desierto, Diane A., "Brief of Amici Curiae International Law Scholars in Support of Petitioners" (2022). Court Briefs. 59.
https://scholarship.law.nd.edu/sct_briefs/59