Simplifying the Foreign Sovereign Immunities Act: If a Sovereign Acts like a Private Party, Treat It like One

This Article will begin in Section II by giving an overview of the development and structure of the FSIA. Section II will explain how the United States moved from its position in the nineteenth century of absolute sovereign immunity to the more appropriate restrictive theory of immunity that is embodied in the FSIA. Section III will then explain in detail why the current framework of the commercial activities exception to the FSIA is problematic. In this Section, the leading cases that have attempted to interpret the commercial activities exception to the FSIA will be analyzed.

Finally, Section IV will present and support an argument for an alternative structure to the commercial activities exception of the FSIA, a more rational approach that simply treats a foreign sovereign like a private party when and if it acts like one. While the alternative structure could and should be introduced by way of a statutory amendment to the FSIA, this Article will also argue that pending such an amendment, courts should interpret the language of the current FSIA in a way that leads to the same results.