By Zhen Song | 62 Am. U. L. Rev. 1771 (2013)

The theory of absolute sovereign immunity once provided broad jurisdictional immunity protections to foreign states and their properties from adjudication in U.S. courts. However, in the last century, Congress and the Supreme Court have both taken significant steps, in conformity with developments in international law, to limit the doctrine’s application exclusively to acts that are sovereign in nature. Enacted in 1976, the Foreign Sovereign Immunities Act codified several exceptions to sovereign immunity,
one of which was for commercial activity. Since then, courts have struggled to define the scope of “commercial activity” in claims involving foreign states. 

This Comment argues that a court’s determination of what constitutes a commercial activity should remain consistent with the approach Congress and the Supreme Court have established—restricting the applicability of sovereign immunity via expansion of the boundaries of commercial activity. In light of the Court’s decisions in Republic of Argentina v. Weltover and Saudi Arabia v. Nelson, courts should adopt a two-step analysis for determining whether an act is “commercial” under the Foreign Sovereign Immunities Act. Courts should first narrowly construe the scope of a foreign state’s conduct relevant to the commercial activity analysis, and then broadly interpret the commercial nature of the identified act. Applying this two-part test, this Comment concludes that the Eleventh Circuit’s analysis of “commercial activity” in Odyssey Marine Exploration Inc. v. Unidentified Shipwrecked Vessel not only contradicted the Supreme Court’s interpretation of the term’s scope in Weltover, but more importantly, it altered the boundaries of “commercial activity” and conflicted with the progress Congress and the Supreme Court have made in limiting the reach of the sovereign immunity doctrine.

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