Direct Effect Jurisdiction under the Foreign Sovereign Immunities Act: Searching for an Integrated Approach

Recent decisions by the United States Supreme Court as to the international reach of American antitrust and securities statutes have engendered significant debate about the appropriate extraterritorial application of federal law. Such debates have also slowly come to include some mention of the right application of state law beyond U.S. boundaries through long-arm statutes. The arguments of different commentators and jurists universally support careful consideration of the implications of prescribing a rule of U.S. law to foreign conduct, absent an appropriate basis in international law and practice. The time is now right, therefore, to consider how these debates affect a statute that combines federal and state law and potentially prescribes both of those sources of law abroad in the same action: The Foreign Sovereign Immunities Act (FSIA).

This Article discusses the "direct effect" provision under FSIA's commercial activities exception. It argues that the jurisprudence interpreting the appropriate reach of that provision has become confusing and unworkable, and advocates a reinterpretation in light of the ongoing larger discussion about extraterritoriality in the federal and state law contexts.