73 Am. U. L. Rev. F. 303 (2024).

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Abstract

Amidst globalization, State-owned enterprises have increasingly entered the domestic markets of other States. In light of global calls for enhanced corporate accountability, this influx raises critical questions about State-owned enterprises’ susceptibility to criminal prosecution and civil liability, particularly regarding their immunity. This Comment explores the intersection between State-owned enterprises and the evolving legal landscape of foreign sovereign immunity in the United States. While the Foreign Sovereign Immunities Act offers a framework for immunity decisions, the Supreme Court’s 2023 decision in Türkiye Halk Bankası A.Ş. v. United States limited its applicability to civil cases, leaving a gap for criminal prosecutions under common law immunity.

This Comment addresses this gap by asserting that historical U.S. judicial practices and customary international law support affording absolute immunity to foreign States in criminal cases under federal common law. However, it differentiates State-owned enterprises as separate commercial legal entities that do not automatically possess the same immunity rights. Instead, it proposes that in the absence of clear legislative policy, courts should employ a conduct-based analysis to determine the immunity afforded to State-owned enterprises. This recommendation aims to balance the need for corporate accountability with respect for sovereign rights, fostering a legal environment that effectively addresses the challenges at the intersection of international commerce and foreign sovereign immunity.

* Articles Editor, American University Law Review, Vol. 74; J.D. Candidate, American University Washington College of Law, 2025; M.A. Candidate, American University School of International Service, 2025; B.A., Political Science and Psychology, St. Olaf College, magna cum laude 2022. I would like to express my deepest gratitude to my biggest supporters: my parents, Jennifer and Tony Robson, and my brothers, Bennett, Maxwell, and Nathaniel. This Comment would not have been possible without their unwavering support, steadfast love, and constant encouragement. Thank you for always pushing me to realize my potential. A special thanks to all my law school colleagues for their dedication in bringing this piece to its final form and for their support along the way.