Supreme Court of the United States

“ Right out of the gate, lower courts will have to decide between two very different approaches. One option is to defer to the Executive Branch’s judgment on whether to grant immunity to a foreign sovereign—an approach sometimes employed by federal courts in the years immediately preceding the FSIA’s adoption. The other option is for a court to make the immunity decision looking to customary international law and other sources. ”

“ Halkbank advances three additional reasons why this Court should read the FSIA to immunize foreign states and their instrumentalities from criminal proceedings. None is persuasive.
First, Halkbank emphasizes this Court’s statement in a 1989 case that the FSIA is the “sole basis for obtaining jurisdiction over a foreign state in federal court.” Amerada Hess, 488 U. S., at 439. But Amerada Hess was not a criminal case. Rather, it was a civil case brought under the Alien Tort Statute and under the federal courts’ general admiralty and maritime jurisdiction. ”

“ The Government disagrees. Reasoning from pre-FSIA history and precedent, the Government asserts that the common law does not provide for foreign sovereign immunity when, as here, the Executive Branch has commenced a federal criminal prosecution of a commercial entity like Halkbank. ”

“ But none exists.
Moreover, Halkbank’s interpretation of §1604 is difficult to square with its interpretation of §1605, an FSIA provision delineating exceptions to the immunity granted in §1604. Halkbank reads §1604 to confer immunity in both civil and criminal cases. But Halkbank then turns around and insists that the exceptions to that immunity specified in §1605—exceptions which, per the statute, apply “in any case”—attach exclusively in civil matters. ”

“ The Act similarly provides for removal to federal court of a “civil action” brought in state court. §1441 (d) . The Act prescribes detailed rules—including those governing service of “the summons and complaint,” §1608 (a) (1) , along with “an answer or other responsive pleading to the complaint,” §1608 (d) , as well as for any judgment of default, §1608 (e) —that relate to civil cases alone. ”

“ Perhaps Article III incorporated customary international law into federal common law. But since Erie R. Co. v. Tompkins, 304 U. S. 64 (1938) , federal courts have largely disclaimed the power to develop federal common law outside of a few reserved areas. See Sosa, 542 U. S., at 740–742 (opinion of Scalia, J.) . And whether customary international law survives as a form of federal common law after Erie is a matter of considerable debate among scholars. Compare C. Bradley & J. Goldsmith, Customary International Law as Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. ”