Lurking Attribution Issues Under the FSIA

During my regular review of FSIA cases, I am constantly surprised by the inattention paid to attribution.

For example, in LaLoup v. United States, No. CIV.A. 13-7124, 2014 WL 3361804 (E.D. Pa., July 10, 2014), the court assumed that Greece owned an item for purposes of the international takings exception because the item was owned by an agency or instrumentality of Greece.  LaLoup, 2014 3361804, at *18.  The court’s conclusion ignores a fundamental principle underlying the FSIA, namely that “government instrumentalities established as juridical entities distinct and independent from their sovereign should normally be treated as such.”  First Nat. City Bank v. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611, 626-27 (1983).  If property is owned by an agency or instrumentality of a foreign state, it is not owned by the foreign state itself for purposes of the FSIA’s jurisdictional provisions – at least absent a principal-agent relationship or another basis upon which to disregard the agency or instrumentality’s separate legal status.

Attribution issues under the FSIA can be complex and can (as I have explained before) lead to confusion.  However, courts and attorneys should follow a basic rule: if there are distinct legal entities involved under a plaintiff’s theory of the case, there is a lurking attribution issue.  That issue must be addressed and resolved before the conduct or ownership rights of one entity can be freely imputed to another.

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