The discretionary function exception under the Foreign Sovereign Immunities Act: when in America, do the Romans do as the Romans wish?
The discretionary function exception under the Foreign Sovereign Immunities Act at least should be limited and ideally should be repealed. The discretionary function exception is an exception to the non-commercial tort exception to foreign sovereign immunity. It is applied broadly to cases other than simple negligence and thus deprives many parties of relief from wrongs committed by agents of foreign states. The exception should not apply in cases involving action prohibited or mandated by federal or state law. It should be repealed because it is anachronistic and does not conform with international practice.
Publication Name: Columbia Law Review
Foreign Sovereign Immunities Act - promissory notes under commercial activity exception - need for actual authority of agent of foreign state under commercial activity exception - burdens of production and proof under the Act
The 9th Circuit Court of Appeals determined that H.A. Chalid Mawardi was not an agent of the Republic of Indonesia under the terms of the Foreign Sovereign Immunities Act in Phaneuf v. Republic of Indonesia, despite evidence to the contrary. The ruling was also inappropriately based on US law when the event involved Indonesia and occurred in Syria, making foreign laws more appropriate for consideration in the case. The Court's decision would allow any nation to avoid obligations simply by stating after the fact that its agents had no authority regardless of their official capacity.
Publication Name: American Journal of International Law
Criminalized foreign bribery will improve trade
A convention against corruption and criminalizing the bribery of foreign public officials was signed in Dec 1997 by 29 member nations of the Organization for Economic Cooperation and Development and five nonmembers. This convention recognizes that foreign bribery is a serious crime affecting business and society, a crime which the US condemned under the Foreign Corrupt Practices Act since 1977.
Publication Name: The National Law Journal
- Abstracts: Jurisdictional discovery under the Foreign Sovereign Immunities Act. The impact of the Hilmer reforms on the health care sector
- Abstracts: The ethics of arbitration in the securities industry. The Canadian Defense Ethics Program and the "corporate model"
- Abstracts: Litigation and settlement under the English and American rules: theory and evidence. Enforcement costs and the optimal magnitude and probability of fines
- Abstracts: Reverse discrimination employment litigation: defining the limits of preferential promotion. Should men benefit from the same presumption of unlawful sex discrimination that helps women claimants under the Equal Pay Act?