April 15, 2019

In Jam v. International Finance Corp., the US Supreme Court held that international organizations are not entitled to absolute immunity from lawsuits, but rather only to the immunity that foreign governments receive today.  The Court’s 7-1 opinion, delivered on February 27, 2019, adopted the same position as advocated in an amicus brief prepared by the firm on behalf of a group of leading international law scholars.

Jam interpreted the International Organizations Immunities Act (IOIA), which provides that international organizations, including entities like the World Bank and World Health Organization, are entitled to the “same immunity from suit . . . as is enjoyed by foreign governments.”  At issue in the case was whether the “same immunity” refers to the absolute immunity foreign governments received when the IOIA was enacted in 1945 or the immunity they receive today, which is limited by the Foreign Sovereign Immunities Act of 1976 (FSIA).  The Court interpreted “same immunity” to mean that international organization immunity and foreign government immunity are “continuously equivalent.”

The firm’s brief tracked the history of the US government’s approach to foreign sovereign immunity around the time the IOIA was passed, culminating in 1952 when the US State Department announced a definitive shift in executive branch policy from favoring absolute immunity to favoring the restrictive approach later formalized in the FSIA.  The brief argued that the “trends motivating the 1952 announcement . . . were already evident in 1945” when the IOIA was passed, making it “implausible that Congress in 1945 assumed a static conception of foreign governments’ immunity[.]”

Consistent with this argument, the Court in its opinion recognized that the IOIA’s reference to the immunity enjoyed by foreign governments was “to an external body of potentially evolving law—the law of foreign sovereign immunity—not to a specific provision of another statute.”  The Court thus interpreted the IOIA, as did the firm’s brief, to allow the law of international organization immunity and the law of foreign sovereign immunity to “develop[] in tandem” with each other.

The team working on the brief included Partner Patrick W. Pearsall, Associates Tassity Johnson and Jacob L. Tracer, former Associate Kendall Turner, and former Summer Associate Tyler M. Finn.