On September 28, 2016 (15 years following the events of 9/11), the U.S. Congress overrode President Barack Obama’s veto of the JASTA bill, which sought to revise the legal concepts of “foreign state immunity” in order to expand civil liability for foreign states and their instrumentalities. As a generally accepted principle, states and their officials may not be sued in the courts of other countries over acts carried out in their authorized or legal capacity. This concept of sovereign immunity continues to remain a core principle of public international law as applied by diplomats and states during the course of their geopolitical relationships. When juxtaposed with the above general practice of international law, it has been argued that JASTA seeks to restrict the application of sovereign immunity to states and their instrumentalities when they are connected to international acts of terror carried out in the United States or against United States nationals.

The origins of JASTA date back to December 2009, as a result of a series of shifting court rulings concerning the application of the Foreign Sovereign Immunities Act (FSIA) and the Anti-Terrorism Act (ATA). Its context was directly with reference to the events of September 11, 2001, and attempts to sue states alleged to have supported the 9/11 events. To be clear, the law is not limited to any potential action against one particular state, and allows potential actions in any U.S. courts against any other country that qualifies under the law.

With JASTA now amending the FSIA (the law that governs litigations against foreign sovereigns and state instrumentalities in U.S. courts) and the ATA (the law that creates civil remedies for U.S. nationals to obtain triple damages against those responsible for injuries arising out of “an act of international terrorism”), the previous U.S. court rulings no longer apply and the JASTA amendments expand the scope of statutory liability for foreign states and their instrumentalities.

Key Considerations

Below we outline three key areas of law amended by JASTA.

International Sovereign Immunity

JASTA expands the “non-commercial tort” exception to sovereign immunity in the FSIA, which has traditionally applied only where both the tort was committed in the United States and the resulting injury occurred in the United States (this being the “entire-tort rule”). Under the previous entire-tort rule all of the acts constituting a tort had to have occurred in the United States (not just the injury) in order to qualify under the FSIA’s non-commercial tort exception (Argentine Republic v Amerada Hess Shipping Corp. 488 U.S. 428, 441 (1989)).

Now, JASTA abrogates the entire-tort rule in cases involving international terrorism, providing that foreign states may be subject to U.S. jurisdiction regardless of where the underlying tortious act or omission occurs. Consequently, any U.S. national who is “injured or in his or her person, property, or business, by reason of an act of international terrorism, or his or her estate, survivors, or heirs may sue therefor in any appropriate district court of the United States...” Such claims can now be brought against foreign states and instrumentalities under the ATA for international terrorists acts in the United States, even where the foreign states’ or instrumentality’s conduct was carried out or conspired outside the United States.

The above change demonstrates an evolution in the canon of sovereign immunity under U.S. jurisprudence, taking a more restrictive approach toward its application and especially toward civil and commercial matters linked with international terrorism or matters threatening the vital interests and international trade of the United States and the foreign travel its citizens.

Liability for Aiding-and-Abetting Created

JASTA now reconfigures the ATA to expressly allow two new categories of liability: aiding and abetting liability and civil conspiracy liability. In each case, the liability arises only in connection with international terrorism “committed, planned, or authorized” by a designated Foreign Terrorist Organization (FTO). A designated FTO would be any foreign organization that the U.S. State Department designates as such due to its engagement in terrorist activity or its capabilities and intent to engage in terrorist activity that would threaten the national security of the United States or the security of United States nationals. Under JASTA, liability may be asserted against any person who aids and abets by knowingly providing substantial assistance or who conspires with the person who committed such an act of international terrorism.

Prior to JASTA, U.S. courts repeatedly held that the ATA did not permit such secondary categories of common-law liability (e.g., Re Terrorist Acts on Sept. 11, 2001, 714, F.3d. 118, 123, (2d Cir 2013)).

Repealed Prohibitions and Retroactive Application

JASTA amends the ATA to repeal a prohibition against suits against a foreign state, agency of a foreign state, or an officer or employee of a foreign state or an agency thereof acting within his or her official capacity or under legal authority.
JASTA also applies to any civil action “pending on or commenced on or after the date of enactment” of the Act, and also “arising out of an injury to a person, property or business on or after September 11, 2001.” This triggers retroactive application to all claims and involving injuries dating to September 11, 2001.

Observations

JASTA does contain a ‘diplomatic’ safety mechanism whereby the attorney general may intervene in a proceeding for the purposes of seeking a stay of civil action(s) brought against foreign states and their instrumentalities. Under section 5 of this provision, if the Secretary of State certifies that the United States is engaged in ‘good-faith’ negotiations with the foreign state defendant, then the U.S. courts are authorized to stay any applicable proceedings for 180 days (subject to further extensions). This provision, perhaps arguably the most important provision concerning international relations within JASTA, appears to have been included to allow for diplomatic efforts following an event of international terrorism connected with the United States or its citizens.

It is still very early to speculate on the effects that JASTA will have on international relations with the United States and its application toward acts of terrorism. It will be interesting to see the number of new civil suits being alleging foreign state involvement in response to the recent spate of terror attacks on U.S. soil.

Congress has already signaled that it may reconsider the breadth of the JASTA amendments out of concerns raised by jurists, international allies and the White House in order to avoid retaliatory actions from other countries (allied or otherwise) that may have a direct impact on U.S. instrumentalities, agents and nationals overseas.

Client Alert 2016-278