The U.S. Supreme Court recently held unanimously that § 1610(g) of the Foreign Sovereign Immunities Act (FSIA) does not lift the immunity from attachment of certain artifacts belonging to Iran.Footnote ¹ The case, Rubin v. Islamic Republic of Iran, stemmed from the petitioners’ attempt to satisfy a prior judgment against Iran for injuries sustained in Hamas suicide bombings in Jerusalem in 1997.Footnote ²

Subject to exceptions, the FSIA “grants foreign states and their agencies and instrumentalities immunity from suit in the United States (called jurisdictional immunity) and grants their property immunity from attachment and execution in satisfaction of judgments against them.”Footnote ³ In Rubin, the petitioners sought to attach Iranian property in order to satisfy a judgment they had previously received under § 1605A of the FSIA, which provides an exception to jurisdictional immunity for acts of terrorism attributable in specified ways to state sponsors of terrorism. Specifically, the petitioners sought to seize Iranian artifacts known as the Persepolis Collection in the University of Chicago's possession.Footnote ⁴ The collection, which consists of approximately 30,000 ancient clay tablets and fragments with writings, was loaned to the University of Chicago by Iran in 1937.Footnote ⁵

Section 1610 delineates exceptions to the FSIA's default of immunity from attachment or execution for state property. Sections 1610(a), (b), and (d) permit attachment of property used for commercial activity under certain conditions.Footnote ⁶ For example, § 1610(a) provides that the “property in the United States of a foreign state … used for a commercial activity in the United States, shall not be immune from attachment … if … (7) the judgment relates to a claim for which the foreign state is not immune under section 1605A. …”Footnote ⁷ Earlier in the litigation, petitioners had unsuccessfully argued that the Persepolis Collection was used for commercial activity for purposes of § 1610(a)(7).Footnote ⁸ By the time the Supreme Court heard the case on the merits, however, petitioners were limited to seeking the Persepolis Collection under a different sub-section—§ 1610(g)—which they argued provided a freestanding exception to immunity for the property of a state against whom a judgment has been entered under § 1605A.

Added to the FSIA in 2008, § 1610(g) provides:

1. (g) Property in certain actions.

   1. (1) In general. … [T]he property of a foreign state against which a judgment is entered under section 1605A, and the property of an agency or instrumentality of such a state, including property that is a separate juridical entity or is an interest held directly or indirectly in a separate juridical entity, is subject to attachment in aid of execution, and execution, upon that judgment as provided in this section, regardless of--

      1. (A) the level of economic control over the property by the government of the foreign state;

      2. (B) whether the profits of the property go to that government;

      3. (C) the degree to which officials of that government manage the property or otherwise control its daily affairs;

      4. (D) whether that government is the sole beneficiary in interest of the property; or

      5. (E) whether establishing the property as a separate entity would entitle the foreign state to benefits in United States courts while avoiding its obligations.Footnote ⁹

In an opinion by Justice Sotomayor issued in February 2018, the Supreme Court held unanimously that § 1610(g) did not create an independent exception to the immunity of state property for parties seeking to satisfy a § 1605A judgment. Instead, “[a] judgment holder seeking to take advantage of § 1610(g)(1) must identify a basis under one of § 1610's express immunity-abrogating provisions to attach and execute against a relevant property.”Footnote ¹⁰

In reaching this holding, the Court observed that § 1610(g)(1) was added to the FSIA in 2008 to abrogate in part the Court's earlier decision in First National City Bank v. Banco Para el Comercio Exterior de Cuba (Bancec).Footnote ¹¹ Bancec had established a presumption that, under the FSIA, a foreign state's agencies and instrumentalities with separate juridical status could not be deemed liable for the state's acts.Footnote ¹² The federal appellate courts then developed a five-factor test to determine when this presumption would be overcome.Footnote ¹³ In Rubin, the Supreme Court reasoned that, in § 1610(g)(1), Congress had clearly rejected Bancec and its subsequent refinement as to the satisfaction of judgments entered for state sponsorship of terrorism under § 1605A.Footnote ¹⁴ This is evident, noted the Court, because § 1610(g)(1) provides that state agencies and instrumentalities are liable “regardless of” five listed factors which, the Court noted, resemble “almost verbatim” the prior five-factor test.Footnote ¹⁵

The Court then asked whether, in addition to abrogating Bancec, “§ 1610(g) does something more … [and] provides an independent exception to immunity so that it allows a § 1605A judgment holder to attach and execute against any property of the foreign state.”Footnote ¹⁶ Based on statutory text and historical practice, the Court concluded that the answer was no:

The Court thus held that parties who seek to satisfy a judgment under § 1605A's state-sponsored terrorism exception to jurisdictional immunity cannot rely on § 1610(g), but must instead satisfy one of § 1610's other immunity-abrogating provisions. In an amicus brief filed in support of Iran, the United States emphasized that this reading of § 1610(g) was consistent with broader U.S. policy interests. The U.S. brief explained:

Although the Court did not discuss these policy interests, it emphasized the “delicate balance that Congress struck in enacting the FSIA.”Footnote ¹⁹