Ukraine v. Pao Tatneft

The Foreign Sovereign Immunities Act states that “a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided” in the Act. 28 U.S.C. § 1604. The Act “provides the sole basis for obtaining [subject-matter] jurisdiction over a foreign state.” Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993). “[U]nless a specified exception applies,” foreign states are immune. Ibid. This case involves two exceptions: the waiver exception and the arbitration exception. Under the waiver exception, a state is not immune when it “has waived its immunity * * * by implication.” § 1605(a)(1). Under the arbitration exception, a state is not immune in an action “to enforce an [arbitration] agreement made by the foreign state with or for the benefit of a private party * * * or to confirm an award made pursuant to such an agreement if * * * paragraph (1) of this subsection is otherwise applicable.” § 1605(a)(6)(D). “[P]aragraph (1)” refers to the waiver exception. Thus, the arbitration exception specifies three predicates not present in the waiver exception: “an arbitration agreement,” with a “private party,” and (as relevant here) “an award made pursuant to such an agreement.” The questions presented are: Whether the D.C. Circuit correctly held that: (1) all 160 signatories to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (i.e., the New York Convention) waived their sovereign immunity because they “must have contemplated arbitration-enforcement actions in other signatory countries”; and (2) a petitioner enforcing an arbitral award may invoke the waiver exception without making the more specific showings required by the arbitration exception.