throbber

`(Slip Opinion)
`
`
`
` OCTOBER TERM, 2016
`
`
`Syllabus
`
`1
`
` NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
`
`
`
` being done in connection with this case, at the time the opinion is issued.
`
`
`
` The syllabus constitutes no part of the opinion of the Court but has been
`
` prepared by the Reporter of Decisions for the convenience of the reader.
`
` See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
`
`
`SUPREME COURT OF THE UNITED STATES
`
`
`
` Syllabus
`
` BOLIVARIAN REPUBLIC OF VENEZUELA ET AL. v.
`
`
`HELMERICH & PAYNE INTERNATIONAL DRILLING
`
`
`CO. ET AL.
`
`CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
`
`THE DISTRICT OF COLUMBIA CIRCUIT
` No. 15–423. Argued November 2, 2016—Decided May 1, 2017
`
`The Foreign Sovereign Immunities Act (FSIA) shields foreign states
`
`from suits in United States Courts, 28 U. S. C. §1604, with specified
`exceptions. The expropriation exception applies to “any case . . . in
`which rights in property taken in violation of international law are in
`issue and that property . . . is owned or operated by an agency or in-
`strumentality of the foreign state . . . engaged in a commercial activi-
`
`ty in the United States.” §1605(a)(3).
`
`A wholly owned Venezuelan subsidiary (Subsidiary) of an Ameri-
`can company (Parent) has long supplied oil rigs to oil development
`entities that were part of the Venezuelan Government. The Ameri-
`
`
`can Parent and its Venezuelan Subsidiary (plaintiffs) filed suit in
`federal court against those entities (Venezuela), claiming that Vene-
`zuela had unlawfully expropriated the Subsidiary’s rigs by national-
`izing them. Venezuela moved to dismiss the case on the ground that
`
`its sovereign immunity deprived the District Court of jurisdiction.
`Plaintiffs argued that the case falls within the expropriation excep-
`tion, but Venezuela claimed that international law did not cover the
`expropriation of property belonging to a country’s nationals like the
`Subsidiary and that the American Parent did not have property
`rights in the Subsidiary’s assets. The District Court agreed as to the
`Subsidiary, dismissing its claim on jurisdictional grounds. But it re-
`jected the claim that the Parent had no rights in the Subsidiary’s
`
`property. The District of Columbia Circuit reversed in part and af-
`
`firmed in part, finding that both claims fell within the exception.
`With respect to the Subsidiary’s claim, it concluded that a sovereign’s
`
`taking of its own nationals’ property would violate international law
`
`
`
`
`
`
`
`
`
`
`
`

`

`
`2 BOLIVARIAN REPUBLIC OF VENEZUELA v. HELMERICH &
`
`PAYNE INT’L DRILLING CO.
`
`
`Syllabus
`
`if the expropriation unreasonably discriminated based on a compa-
`ny’s shareholders’ nationality. With respect to the Parent’s claim, it
`held that the exception applied because the Parent had raised its
`rights in a nonfrivolous way. The court decided only whether the
`plaintiffs might have a nonfrivolous expropriation claim, making
`clear that, under its standard, a nonfrivolous argument would be suf-
`ficient to bring a case within the scope of the exception. Given the
`factual stipulations, the court concluded, the Subsidiary had satisfied
`
`that standard for purposes of surviving a motion to dismiss.
`
`Held: The nonfrivolous-argument standard is not consistent with the
`FSIA. A case falls within the scope of the expropriation exception on-
`ly if the property in which the party claims to hold rights was indeed
`“property taken in violation of international law.” A court should de-
`cide the foreign sovereign’s immunity defense “[a]t the threshold” of
`the action, Verlinden B. V. v. Central Bank of Nigeria, 461 U. S. 480,
`
`493, resolving any factual disputes as near to the outset of the case as
`
`is reasonably possible. Pp. 6–16.
`
`(a) The expropriation exception grants jurisdiction only where
`
`there is a legally valid claim that a certain kind of right is at issue
`(property rights) and that the relevant property was taken in a cer-
`tain way (in violation of international law). Simply making a non-
`frivolous argument to that effect is not sufficient. This reading is
`
`supported by the provision’s language, which applies in a “case. . . in
`which rights in property taken in violation of international law are in
`issue.” Such language would normally foresee a judicial decision
`about the jurisdictional matter. This interpretation is supported by
`precedent. See, e.g., Permanent Mission of India to United Nations v.
`City of New York, 551 U. S. 193, 201–202. It is also supported by a
`basic objective of the FSIA, which is to follow international law prin-
`ciples, namely, that granting foreign sovereigns immunity from suit
`both recognizes the “absolute independence of every sovereign au-
`thority” and helps to “induc[e]” each nation state, as a matter of “in-
`ternational comity,” to “respect the independence and dignity of every
`other,” Berizzi Brothers Co. v. S. S. Pesaro, 271 U. S. 562, 575. Noth-
`ing in the FSIA’s history suggests that Congress intended a radical
`departure from these principles in codifying the mid-20th-century
`doctrine of “restrictive” sovereign immunity, which denies immunity
`
`
`in cases “arising out of a foreign state’s strictly commercial acts,” but
`
`applies immunity in “suits involving the foreign sovereign’s public
`acts,” Verlinden, supra, at 487. It is thus not surprising that the ex-
`propriation exception on its face emphasizes conformity with interna-
`tional law, requiring both a commercial connection with the United
`States and a taking of property “in violation of international law.”
`
`A “nonfrivolous-argument” reading of the exception would under-
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`
`
`
`
`
`Cite as: 581 U. S. ____ (2017)
`
`
`Syllabus
`mine the objectives embedded in the statute’s language, history, and
`structure. It could also embroil a foreign sovereign in an American
`lawsuit for some time by adopting a standard limited only by the
`bounds of a lawyer’s (nonfrivolous) imagination. And it could cause
`
`
`friction with other nations, leading to reciprocal actions against this
`
`country. Pp. 6–12.
`
`(b) Plaintiffs’ arguments to the contrary are unpersuasive. They
`suggest that the expropriation exception should be treated similarly
`to 28 U. S. C. §1331’s “arising under” jurisdiction, which applies if a
`plaintiff can make a nonfrivolous argument that a federal law pro-
`vides the relief sought—even if, in fact, it does not, Bell v. Hood, 327
`U. S. 678 685. But §1331 differs from the exception in language and
`concerns. Section 1331 often simply determines which court doors—
`federal or state—are open, and neither it nor related jurisdictional
`sections seek to provide a sovereign foreign nation with immunity—
`the FSIA’s basic objective. Nor does the text of §1331 suggest that
`consistency with international law is of particular importance.
`
`Plaintiffs also claim that the nonfrivolous-argument approach will
`work little harm since the matter could be resolved by motion prac-
`tice before the sovereign bears the expense of a full trial. But resolv-
`ing a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) or
`summary judgment under Rule 56 may impose increased burdens of
`time and expense upon the foreign nation. And a district court’s de-
`cision that there is a “violation of international law” as a matter of
`jurisdiction may be immediately appealable as a collateral order,
`while the same decision made pursuant to a Rule 12(b)(6) or Rule 56
`motion would be a decision on the “merits” not subject to immediate
`appeal. Moreover, the Circuit would part with its nonfrivolous-
`argument standard where a “violation of international law” is not an
`element of the claim to be decided on the merits. This bifurcated ap-
`proach is difficult to reconcile with the statute’s language, history, or
`purpose; and it creates needless complexity for judges and lawyers,
`
`domestic and foreign. Pp. 12–16.
`784 F. 3d 804, vacated and remanded.
`BREYER, J., delivered the opinion of the Court, in which all other
`Members joined, except GORSUCH, J., who took no part in the considera-
`tion or decision of the case.
`
`
`
`3
`
`
`
`
`
`

`

`
`
`
`
` Cite as: 581 U. S. ____ (2017)
`
`Opinion of the Court
`
`1
`
`
` NOTICE: This opinion is subject to formal revision before publication in the
`
`
`
` preliminary print of the United States Reports. Readers are requested to
`
` notify the Reporter of Decisions, Supreme Court of the United States, Wash­
`
` ington, D. C. 20543, of any typographical or other formal errors, in order
`
`
` that corrections may be made before the preliminary print goes to press.
`
`
`
`
`SUPREME COURT OF THE UNITED STATES
`
`_________________
`
` No. 15–423
`_________________
` BOLIVARIAN REPUBLIC OF VENEZUELA, ET AL.,
`
`
`
`PETITIONERS v. HELMERICH & PAYNE IN­
`TERNATIONAL DRILLING CO., ET AL.
`
`
`ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
`
`
`APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`[May 1, 2017]
`
` JUSTICE BREYER delivered the opinion of the Court.
`The Foreign Sovereign Immunities Act of 1976 (FSIA or
`
`Act), provides, with specified exceptions, that a “foreign
`state shall be immune from the jurisdiction of the courts of
`the United States and of the States . . . .” 28 U. S. C.
`§1604. One of the jurisdictional exceptions—the expropri­
`ation exception—says that
`“[a] foreign state shall not be immune from the juris­
`diction of courts of the United States or of the States
`in any case . . . (3) in which rights in property taken in
`violation of international law are in issue and that
`property . . . is owned or operated by an agency or
`instrumentality of the foreign state . . . engaged in
`the United States.”
`a commercial activity
`in
`
`§1605(a)(3).
`
`
`The question here concerns the phrase “case . . . in which
`rights in property taken in violation of international law
`are in issue.”
`
`
`Does this phrase mean that, to defeat sovereign immu­
`nity, a party need only make a “nonfrivolous” argument
`
`
`
`

`

` 2 BOLIVARIAN REPUBLIC OF VENEZUELA v. HELMERICH &
`
`
`PAYNE INT’L DRILLING CO.
`
`Opinion of the Court
`
`that the case falls within the scope of the exception? Once
`made, does the existence of that nonfrivolous argument
`mean that the court retains jurisdiction over the case until
`the court decides, say, the merits of the case? Or does a
`more rigorous jurisdictional standard apply? To put the
`question more generally: What happens in a case where
`the party seeking to rely on the expropriation exception
`makes a nonfrivolous, but ultimately incorrect, claim that
`his property was taken in violation of international law?
`In our view, a party’s nonfrivolous, but ultimately incor­
`
`rect, argument that property was taken in violation of
`international law is insufficient to confer jurisdiction.
`
`
`Rather, state and federal courts can maintain jurisdiction
`to hear the merits of a case only if they find that the prop­
`erty in which the party claims to hold rights was indeed
`
`“property taken in violation of international law.” Put
`differently, the relevant factual allegations must make out
`a legally valid claim that a certain kind of right is at issue
`(property rights) and that the relevant property was taken
`in a certain way (in violation of international law). A good
`argument to that effect is not sufficient. But a court nor­
`mally need not resolve, as a jurisdictional matter, disputes
`about whether a party actually held rights in that prop-
`erty; those questions remain for the merits phase of the
`litigation.
`
`Moreover, where jurisdictional questions turn upon
`further factual development, the trial judge may take
`evidence and resolve relevant factual disputes. But, con­
`sistent with foreign sovereign immunity’s basic objective,
`namely, to free a foreign sovereign from suit, the court
`should normally resolve those factual disputes and reach a
`decision about immunity as near to the outset of the case
`
`as is reasonably possible. See Verlinden B. V. v. Central
`
`Bank of Nigeria, 461 U. S. 480, 493–494 (1983).
`
`
`
`
`
`
`
`

`

`3
`
`
`
`
`
`
`
`
`
` Cite as: 581 U. S. ____ (2017)
`
`Opinion of the Court
`
`I
`
`
`Since the mid-1970’s a wholly owned Venezuela-
`incorporated subsidiary (Subsidiary) of an American com­
`pany (Parent) supplied oil rigs to oil development entities
`that were part of the Venezuelan Government. In 2011
`the American Parent company and its Venezuelan Subsid­
`iary (the respondents here) brought this lawsuit in federal
`court against those foreign government entities. (The
`entities go by their initials, PDVSA, but we shall normally
`refer to them as “Venezuela” or the “Venezuelan Govern­
`ment.”) The American Parent and the Venezuelan Subsid­
`iary claimed that the Venezuelan Government had unlaw­
`
`fully expropriated the Subsidiary’s oil rigs. And they
`
`sought compensation.
`
`
`According to stipulated facts, by early 2010 the Vene­
`zuelan Government had failed to pay more than $10 mil­
`lion that it owed the Subsidiary. At that point the gov­
`ernment sent troops to the equipment yard where the rigs
`were stored, prevented the Subsidiary from removing the
`rigs, and issued a “‘Decree of Expropriation’” nationaliz­
`ing the rigs. App. 72–74. Subsequently, the president of
`the oil development entities led a rally at the Subsidiary’s
`offices, where he referred to the Venezuelan Subsidiary as
`an “‘American company’” with “‘foreign gentlemen inves­
`tors.’” Id., at 54.
`
`Venezuela asked the court to dismiss the case on the
`ground that Venezuela possessed sovereign immunity and
`that the court consequently lacked “jurisdiction” to hear
`the case. See 28 U. S. C. §1604; Fed. Rules Civ. Proc.
`12(b)(1) and (b)(2); Verlinden, supra, at 485, n. 5 (explain­
`ing that a court lacks “subject-matter” and “personal”
`jurisdiction over a foreign sovereign unless an FSIA excep­
`tion applies). The companies replied that the case falls
`within the expropriation exception. Venezuela in turn
`argued that the Subsidiary’s expropriation claim did not
`satisfy the exception because “‘international law does not
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

` 4 BOLIVARIAN REPUBLIC OF VENEZUELA v. HELMERICH &
`
`
`PAYNE INT’L DRILLING CO.
`
`Opinion of the Court
`
`cover expropriations of property belonging to a country’s
`own nationals’”; the taking was not “‘in violation of inter­
`national law,’” and the exception thus does not apply.
`Record in No. 11–cv–01735 (D DC), Doc. 22, p. 13. Vene­
`zuela further argued that the American Parent’s national­
`
`ity makes no difference because, “as a corporate parent,
`[it] does not own [the Subsidiary’s] assets.” Id., Doc. 24,
`at 12.
`
`The parties agreed that the District Court should then
`decide whether the exception applies, and it should do so
`on the basis of governing law, taking all of the plaintiffs’
`well-pleaded allegations as true and construing the com­
`plaint in the light most favorable to the plaintiffs. App.
`119. The court decided, in relevant part, that the excep­
`tion did not apply to the Venezuelan Subsidiary’s claim
`because the Subsidiary was a national of Venezuela. See
`971 F. Supp. 2d 49, 57–61 (2013). The court concluded
`that Venezuela consequently possessed sovereign immu-
`nity, and it dismissed the Subsidiary’s claim on jurisdic­
`tional grounds. It rejected, however, Venezuela’s argument
`that the Parent had no rights in property in the Subsidi­
`ary. It concluded that Venezuela’s “actions have deprived
`[the Parent], individually, of its essential and unique
`rights as sole shareholder . . . by dismantling its voting
`power, destroying its ownership, and frustrating its con­
`
`
`trol over the company.” Id., at 73.
`
`The Venezuelan Subsidiary appealed the dismissal of its
`expropriation claim, and Venezuela appealed the court’s
`refusal to dismiss the Parent’s claim. The Court of Ap­
`peals for the District of Columbia Circuit reversed in part
`and affirmed in part the District Court’s conclusions. It
`decided that both the Subsidiary’s and the Parent’s claims
`fell within the exception.
`
`With respect to the Subsidiary’s claim, the court agreed
`that a sovereign’s taking of its own nationals’ property
`normally does not violate international law. But, the
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`
`
` Cite as: 581 U. S. ____ (2017)
`
`Opinion of the Court
`court said, there is an “exception” to this rule. And that
`exception applies when a sovereign’s expropriation unrea­
`sonably discriminates on the basis of a company’s share­
`holders’ nationality, 784 F. 3d 804, 812 (CADC 2015)
`(citing Banco Nacional de Cuba v. Sabbatino, 307 F. 2d
`845 (CA2 1962)). That exception, it added, might apply
`here, in which case the expropriation would violate inter­
`national law, the FSIA’s expropriation exception would
`apply, and the federal courts would possess jurisdiction
`
`over the case. 784 F. 3d, at 813. With respect to the
`
`Parent’s expropriation claim, the court agreed with the
`District Court that the expropriation exception applied
`because the Parent had “‘put its rights in property in issue
`in a non-frivolous way.’” Id., at 816.
`
`For present purposes, it is important to keep in mind
`that the Court of Appeals did not decide (on the basis of
`the stipulated facts) that the plaintiffs’ allegations are
`sufficient to show their property was taken in violation of
`international law. It decided instead that the plaintiffs
`might have such a claim. And it made clear the legal
`standard that it would apply. It said that, in deciding
`whether the expropriation exception applies, it would set
`an “exceptionally low bar.” Id., at 812. Any possible, i.e.,
`“‘non-frivolous,’” ibid., claim of expropriation is sufficient,
`in the Court of Appeals’ view, to bring a case within the
`scope of the FSIA’s exception. In particular: If a plaintiff
`alleges facts and claims that permit the plaintiff to make
`an expropriation claim that is not “‘wholly insubstantial or
`
`frivolous,’” then the exception permits the suit and the
`
`sovereign loses its immunity. Ibid. (emphasis added).
`Given the factual stipulations, the Court of Appeals did
`not suggest further factfinding on this jurisdictional issue
`but, rather, decided that the Subsidiary had “satisfied this
`Circuit’s forgiving standard for surviving a motion to
`dismiss in an FSIA case.” Id., at 813.
`
`
`Venezuela filed a petition for certiorari asking us to
`
`
`
`
`
`
`
`
`
`5
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

` 6 BOLIVARIAN REPUBLIC OF VENEZUELA v. HELMERICH &
`
`
`PAYNE INT’L DRILLING CO.
`
`Opinion of the Court
`
`decide whether the Court of Appeals had applied the
`
`correct standard in deciding that the companies had met
`
`the expropriation exception’s requirements. We agreed to
`do so.
`
`
`II
`
`
`Foreign sovereign immunity is jurisdictional in this case
`because explicit statutory language makes it so. See
`§1604 (“[A] foreign state shall be immune from the juris­
`diction of the courts of the United States and of the States
`except as provided” by the FSIA’s exceptions); §1605(a) (“A
`foreign state shall not be immune from the jurisdiction” of
`
`federal and state courts if the exception at issue here is
`satisfied). Given the parties’ stipulations as to all rele­
`
`vant facts, our inquiry poses a “‘pure question of statutory
`
`construction,’” Republic of Austria v. Altmann, 541 U. S.
`677, 701 (2004). In our view, the expropriation exception
`grants jurisdiction only where there is a valid claim that
`“property” has been “taken in violation of international
`law.” §1605(a)(3). A nonfrivolous argument to that effect
`is insufficient.
`For one thing, the provision’s language, while ambigu­
`
`ous, supports such a reading. It says that there is juris­
`diction in a “case . . . in which rights in property taken in
`
`violation of international law are in issue.” Ibid. Such
`
`language would normally foresee a judicial decision about
`the jurisdictional matter. And that matter is whether a
`certain kind of “right” is “at issue,” namely, a property
`right taken in violation of international law. To take a
`purely hypothetical example, a party might assert a claim
`to a house in a foreign country. If the foreign country
`nationalized the house and, when sued, asserted sovereign
`immunity, then the claiming party would as a jurisdic­
`tional matter prove that he claimed “property” (which a
`house obviously is) and also that the property was “taken
`in violation of international law.” He need not show as a
`
`
`
`
`
`
`
`
`
`

`

`
`
` Cite as: 581 U. S. ____ (2017)
`
`Opinion of the Court
` jurisdictional matter that he, rather than someone else,
`
`owned the house. That question is part of the merits of
`the case and remains “at issue.”
`
`We recognize that merits and jurisdiction will some­
`
`times come intertwined. Suppose that the party asserted
`a claim to architectural plans for the house. It might be
`necessary to decide whether the law recognizes the kind of
`right that he asserts, or whether it is a right in “property”
`that was “taken in violation of international law.” Per­
`haps that is the only serious issue in the case. If so, the
`court must still answer the jurisdictional question. If to
`do so, it must inevitably decide some, or all, of the merits
`issues, so be it.
`Our reading of the statute is consistent with its lan­
`
`guage. The case is one which the existence of “rights”
`remains “at issue” until the court decides the merits of the
`case. But whether the rights asserted are rights of a
`
`certain kind, namely, rights in “property taken in violation
`of international law,” is a jurisdictional matter that the
`court must typically decide at the outset of the case, or as
`
` close to the outset as is reasonably possible.
`Precedent offers a degree of support for our interpreta­
`
`tion. In Permanent Mission of India to United Nations v.
`City of New York, 551 U. S. 193 (2007), we interpreted a
`different FSIA exception for cases “in which . . . rights in
`immovable property situated in the United States are in
`issue.” §1605(a)(4). We held that there was jurisdiction
`over the case because the plaintiff ’s lawsuit to enforce a
`tax lien “directly implicate[d]” the property rights de­
`scribed by the FSIA exception. See id., at 200–201. We did
`not simply rely upon a finding that the plaintiff had made
`a nonfrivolous argument that the exception applied.
`
`For another thing, one of the FSIA’s basic objectives, as
`
`shown by its history, supports this reading. The Act for
`the most part embodies basic principles of international
`law long followed both in the United States and elsewhere.
`
`
`
`
`
`7
`
`
`
`
`
`

`

` 8 BOLIVARIAN REPUBLIC OF VENEZUELA v. HELMERICH &
`
`
`PAYNE INT’L DRILLING CO.
`Opinion of the Court
`
` See Schooner Exchange v. McFaddon, 7 Cranch 116, 136–
`137 (1812); see also Verlinden, 461 U. S., at 493 (explain­
`ing that the Act “comprehensively regulat[es] the amen­
`
`ability of foreign nations to suit in the United States”). Our
`
`
`courts have understood, as international law itself under­
`stands, foreign nation states to be “independent sovereign”
`entities. To grant those sovereign entities an immunity
`
`from suit in our courts both recognizes the “absolute inde­
`pendence of every sovereign authority” and helps to “‘in­
`duc[e]’” each nation state, as a matter of “‘international
`comity,’” to “‘respect the independence and dignity of
`
`every other,’” including our own. Berizzi Brothers Co. v.
`
`S. S. Pesaro, 271 U. S. 562, 575 (1926) (quoting The Par-
`lement Belge, [1880] 5 P. D. 197, 214–215 (appeal taken
`
`from Admiralty Div.)).
`
`In the mid-20th century, we, like many other nations,
`began to treat nations acting in a commercial capacity like
`other commercial entities. See Permanent Mission, supra,
`at 199–200. And we consequently began to limit our
`recognition of sovereign immunity, denying that immunity
`in cases “arising out of a foreign state’s strictly commercial
`acts,” but continuing to apply that doctrine in “suits in­
`volving the foreign sovereign’s public acts,” Verlinden, 461
`U. S., at 487 (emphasis added).
`
`At first, our courts, aware of the expertise of the Execu­
`tive Branch in matters of foreign affairs, relied heavily
`upon the advice of that branch when deciding just when
`and how this “restrictive” sovereign immunity doctrine
`applied. Ibid. See also H. R. Rep. No. 94–1487, pp. 8–9
`(1976) (similar). But in 1976, Congress, at the urging of
`the Department of State and Department of Justice, began
`to codify the doctrine. The resulting statute, the FSIA,
`“starts from a premise of immunity and then creates
`exceptions to the general principle.” Id., at 17; Verlinden,
`supra, at 493. Almost all the exceptions involve commerce
`or immovable property located in the United States. E.g.,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`

`
`
` Cite as: 581 U. S. ____ (2017)
`
`Opinion of the Court
`§§1605(a)(2) and (4); see also §1602 (expressing the finding
`that “[u]nder international law, states are not immune
`from the jurisdiction of foreign courts insofar as their
`commercial activities are concerned”). The statute thereby
`creates a doctrine that by and large continues to reflect
`basic principles of international law, in particular those
`principles embodied in what jurists refer to as the “restric­
`tive” theory of sovereign immunity. See, e.g., Restatement
`(Third) of Foreign Relations Law of the United States
`§451, and Comment a (1986) (describing the restrictive
`theory of immunity); United Nations General Assembly,
`Convention on Jurisdictional Immunities of States and
`Their Property, Res. 59/38, Arts. 5, 10–12 (Dec. 2, 2004)
`(adopting a restrictive theory of immunity and withdraw­
`ing immunity for loss of property where, among other
`requirements, “the act or omission occurred in whole or in
`part in the territory of th[e] other State”); United Nations
`General Assembly, Report of the Ad Hoc Committee on
`Jurisdictional Immunities of States and Their Property,
`
`Supp. A/59/22 No. 1, pp. 7–11 (Mar. 1–5, 2004) (same).
`
`We have found nothing in the history of the statute that
`suggests Congress intended a radical departure from these
`basic principles. To the contrary, the State Department,
`which helped to draft the FSIA’s language (and to whose
`views on sovereign immunity this Court, like Congress,
`has paid special attention, Altmann, 541 U. S., at 696),
`told Congress that the Act was “drafted keeping in mind
`what we believe to be the general state of the law interna­
`tionally, so that we conform fairly closely . . . to our ac­
`cepted international standards,” Hearing on H. R. 3493
`before the Subcommittee on Claims and Governmental
`
`Relations of the House of Representatives Committee on
`the Judiciary, 93d Cong., 1st Sess., 18 (1973). The De­
`
`partment added that, by doing so, we would diminish the
`likelihood that other nations would each go their own way,
`
`thereby “subject[ing]” the United States “abroad” to more
`
`
`
`
`
`9
`
`
`
`
`
`
`
`

`

`
` 10 BOLIVARIAN REPUBLIC OF VENEZUELA v. HELMERICH &
`
`
`PAYNE INT’L DRILLING CO.
`Opinion of the Court
`claims “than we permit in this country . . . .” Ibid. It is
`consequently not surprising to find that the expropriation
`exception on its face emphasizes conformity with interna­
`tional law by requiring not only a commercial connection
`with the United States but also a taking of property “in
`violation of international law.”
`
`We emphasize this point, embedded in the statute’s
`language, history, and structure, because doing so reveals
`a basic objective of our sovereign immunity doctrine,
`which a “nonfrivolous-argument” reading of the expropria­
`tion exception would undermine. A sovereign’s taking or
`regulating of its own nationals’ property within its own
`territory is often just the kind of foreign sovereign’s public
`act (a “jure imperii”) that the restrictive theory of sover­
`eign immunity ordinarily leaves immune from suit. See
`Permanent Mission, 551 U. S., at 199 (describing the
`FSIA’s distinction between public acts, or jure imperii, and
`purely commercial ones); Restatement (Third) of Foreign
`Relations Law of the United States §712, at 196 (noting
`that, under international law, a state is responsible for a
`“taking of the property of a national of another state”
`(emphasis added)). See also Restatement (Fourth) of
`Foreign Relations Law of the United States §455, Report­
`er’s Note 12, p. 9 (Tent. Draft No. 2, Mar. 22, 2016) (noting
`that “[n]o provision comparable” to the exception “has yet
`been adopted in the domestic immunity statutes of other
`countries” and that expropriations are considered acts jure
`imperii); United States v. Belmont, 301 U. S. 324, 332
`(1937); B. Cheng & G. Schwarzberger, General Principles
`of Law as Applied by International Courts and Tribunals
`37–38 (1953) (collecting cases describing “the power of the
`sovereign State to expropriate” (internal quotation marks
`omitted)); Jurisdictional Immunities of the State (Germany
`v. Italy), 2012 I. C. J. 99, 123–125, ¶¶56–60 (Judgt. of Feb.
`3) (noting consistent state practice in respect to the dis­
`tinction between public and commercial acts and describ­
`
`
`
`
`
`
`
`

`

`
`
` 11
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` Cite as: 581 U. S. ____ (2017)
`
`Opinion of the Court
`ing an international law of immunity recognizing such a
`difference); Altmann, supra, at 708 (BREYER, J., concur­
`ring) (describing the French Court of Appeals’ decision
`about whether a King who has abdicated the throne is
`“‘entitled to claim . . . immunity’” as “‘Hea[d] of State’”
`when his sovereign status at the time of suit was in doubt
`(quoting Ex-King Farouk of Egypt v. Christian Dior, 84
`Clunet 717, 24 I. L. R. 228, 229 (CA Paris 1957))).
`To be sure, there are fair arguments to be made that a
`
`sovereign’s taking of its own nationals’ property some­
`times amounts to an expropriation that violates interna­
`tional law, and the expropriation exception provides that
`the general principle of immunity for these otherwise
`public acts should give way. But such arguments are
`about whether such an expropriation does violate interna­
`tional law. To find jurisdiction only where a taking does
`violate international law is thus consistent with basic
`international law and the related statutory objectives and
`principles that we have mentioned. But to find jurisdic­
`tion where a taking does not violate international law (e.g.,
`where there is a nonfrivolous but ultimately incorrect
`argument that the taking violates international law) is
`inconsistent with those objectives. And it is difficult to
`understand why Congress would have wanted that result.
`Moreover, the “nonfrivolous-argument” interpretation
`
`would, in many cases, embroil the foreign sovereign in an
`American lawsuit for an increased period of time. It would
`substitute for a more workable standard (“violation of
`international law”) a standard limited only by the bounds
`of a lawyer’s (nonfrivolous) imagination. It would create
`increased complexity in respect to a jurisdictional matter
`where clarity is particularly important. Hertz Corp. v.
`Friend, 559 U. S. 77, 94–95 (2010). And clarity is doubly
`important here where foreign nations and foreign lawyers
`must understand our law.
`
`Finally, the Solicitor General and the Department of
`
`
`
`
`
`
`
`
`
`

`

`
` 12 BOLIVARIAN REPUBLIC OF VENEZUELA v. HELMERICH &
`
`
`PAYNE INT’L DRILLING CO.
`
`Opinion of the Court
`
`State also warn us that the nonfrivolous-argument inter­
`pretation would “affron[t]” other nations, producing fric­
`tion in our relations with those nations and leading some
`to reciprocate by granting their courts permission to em­
`broil the United States in “expensive and difficult litiga­
`tion, based on legally insufficient assertions that sovereign
`immunity should be vitiated.” Brief for United States as
`Amicus Curiae 21–22. (At any given time the Department
`of Justice’s Office of Foreign Litigation represents the
`United States in about 1,000 cases in 100 courts around
`the world. Ibid.) See also National City Bank of N. Y. v.
`Republic of China, 348 U. S. 356, 362 (1955) (noting that
`our grant of immunity to foreign sovereigns dovetails with
`our own interest in receiving similar treatment).
`
`III
`
`The plaintiffs make two important arguments to the
`contrary. First, they point to the federal statute that gives
`federal courts jurisdiction over cases “arising under the
`Constitution, laws, or treaties of the United States,” 28
`U. S. C. §1331. They note that in Bell v. Hood, 327 U. S.
`678 (1946), this Court held that the “arising under” stat­
`ut

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket