Taking the "Sovereign" Out of the Foreign Sovereign Immunities Act: A Functional Approach to the Commercial Activity Exception

Foreign state immunity has long been the subject of international debate. In recent decades Communist governments generally supported an absolute theory, under which a state enjoys complete immunity from the adjudicatory jurisdiction of other states, while Western governments promoted a restrictive theory, under which a state is immune from suit arising from its "sovereign" or "governmental" acts, but not from its "commercial" or "private" acts. The difference between the absolute and restrictive theories conformed to the contrasting relationship between commerce and the state in the two systems. This East-West debate is now drawing to a close, as the countries of Eastern Europe and the former Soviet Union, whose state-trading interests made them strong supporters of the absolute theory, move steadily toward market economies.