On January 16, 2025, Foley Hoag filed two amicus briefs on behalf of leading U.S. and international jurists on foreign sovereign immunity before the U.S. Supreme Court in Exxon Mobil Corp. v. Corporación CIMEX, S.A. (Cuba).
The Supreme Court granted certiorari to determine whether Title III of the Helms-Burton Act abrogates foreign sovereign immunity in cases against State agencies and instrumentalities, or whether parties proceeding under the Act must also satisfy an exception to immunity under the Foreign Sovereign Immunities Act (“FSIA”). Exxon contends that Title III creates a standalone federal cause of action that reaches State-owned enterprises that “traffic” in confiscated property, and that reading FSIA immunity to block such suits would thwart Congress’ remedial scheme by insulating entities that Congress meant to deter. By contrast, CIMEX argues that the FSIA is the exclusive gateway to suing foreign sovereigns, that Title III contains no clear statement abrogating jurisdictional immunity, and that applying Title III absent a specific FSIA exception would frustrate Congress’ purpose in creating a comprehensive statute to define the application of foreign sovereign immunity.
The amicus briefs urge the Supreme Court to affirm that the FSIA remains the exclusive framework governing jurisdiction over foreign States and their agencies and instrumentalities, and that Title III of the Helms-Burton Act does not implicitly abrogate sovereign immunity. The brief on behalf of U.S. sovereign immunity scholars draws on the text, structure, and history of the FSIA and Helms-Burton Act to argue that Congress did not intend to displace the FSIA's comprehensive regulation of immunity when it passed the Helms-Burton Act. The brief on behalf of international foreign sovereign immunity scholars and jurists further explains that foreign sovereign immunity is a binding rule of customary international law reflected in the FSIA and is distinct from a cause of action such as Title III. Both briefs urge the Court to apply the Charming Betsy canon to avoid an interpretation of the Helms-Burton Act that would place U.S. practice at odds with international law.
The amici are represented by Christina G. Hioureas (counsel of record), Andrew B. Loewenstein, Nick Renzler, Ariella P. Katz Miller, and Matei Alexianu, with assistance from paralegals Judy Gallant, Taleen Khleifat, and Gretchen Sanchez.
