Recent Development: Sachs v. Republic of Austria

The Ninth Circuit’s en banc decision yesterday in Sachs v. Republic of Austria, — F.3d —, 2013 WL 6333439 (9th Cir. Dec. 6, 2013), is a significant development in FSIA law.  In today’s post I want to focus on two issues raised by the Sachs majority opinion that I discussed in prior posts and that may prove useful for FSIA practitioners:

•           Sachs affirms the principle that circuit courts should be reluctant to create circuit splits under the FSIA in light of the principle of uniformity.  See Sachs, 2013 WL 6333439, at *5 (stating that “Congress passed the FSIA to promote uniformity in the treatment of foreign sovereign immunity” and that the court “see[s] no compelling reason to create a split with our sister circuits.”).  That is an important guiding principle in FSIA cases, and can be used with respect to issues such as apparent authority and the standard of compliance required under section 1608(a).

•           The Sachs court describes the burden-shifting regimen under the FSIA as follows: “we must determine (1) whether [plaintiff] has carried her burden to prove, by offering evidence, that the commercial-activity exception to foreign sovereign immunities applies and (2) whether [the foreign sovereign defendant] has carried its burden to prove, by showing a preponderance of evidence, that the exception is not applicable.”  Sachs, 2013 WL 6333439, at *3.  That means that Sachs avoided the “public act” error that the Ninth Circuit made in Terenkian, which is a positive development for reasons I describe more fully here.

There are many other issues raised by the Sachs opinion, but I will address those in future posts.

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