The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
My posts this week, based on a forthcoming article excerpted here, have made several arguments against foreign dictators in U.S. court. Courts need not allow foreign authoritarians to take advantage of access to our judicial system. At the very least, courts could change their approach to the foreign privilege to bring suit, act of state, international comity, and even the FSIA. However, yesterday I concluded that an anti-dictatorship standard was not administrable. The question, then, is how to remedy the original asymmetry—foreign dictators have easy access to court as plaintiffs but can take advantage of protective doctrines when they are defendants.
Today, I propose four different ways to weaken dictators' access to court as plaintiffs and the protections they enjoy as defendants:
To resolve the dictators-as-plaintiffs problem (1) Congress should subject the privilege of bringing suit to the robust procedural protections of a federal Anti-SLAPP statute so that defendants can quickly dismiss oppressive political claims. To resolve the dictators-as-defendants problems, courts should (2) reconsider or eliminate the act of state doctrine; (3) limit the scope of foreign official immunity; and (4) interpret the FSIA exceptions as broadly as they are written, allowing more claims against foreign dictators.
My boldest proposal is to adopt a new Foreign Sovereign Anti-SLAPP statute:
[That] statute would mirror state anti-SLAPP statutes and would allow defendants to demonstrate that a foreign government or its proxy has sued them for political purposes or for exercising rights protected by the U.S. Constitution, either at home or abroad. If defendants can prove this, the burden would shift on to plaintiffs to demonstrate they will prevail on the merits, that they are not attempting to abuse legal process, and, in the case of individuals, that they are not a proxy for a foreign dictatorship. In the meantime, anti-SLAPP procedural protections would kick in.
The statute must address two main definitional problems: (1) what counts as a "political" lawsuit? and (2) what counts as a proxy of a foreign government? On the first question, the statute can draw from current anti-SLAPP standards, the political exception to extradition, and the immigration law standards for political asylum. As discussed above, courts in the extradition context consider whether a foreign government has charged a defendant with a crime that is "political in nature." So called "pure political" offenses involve crimes "like treason, sedition, and espionage, acts directed against the state but which contain none of the elements of ordinary crime." "Relative" political offenses involve common crimes that are "so connected with a political act that the entire offense is regarded as political." This latter offense, in turn, depends on the existence of a "political disturbance" and an offense that was incidental to it. But this standard is still overly narrow and hinges on "violent" uprisings.
An even better model is the political asylum standard, where an applicant "must demonstrate that he faces persecution on account of … political opinion." Applicants satisfy this by showing that a foreign government harmed them for holding a political opinion, including by participating in "act[s] against the government" or protests. And applicants only have to show that holding a political opinion was "one central reason" for the mistreatment or persecution. There are thousands of asylum decisions expounding on this standard, indicating that courts are comfortable defining the existence of "political" acts and subsequent prosecutions (or broader persecution).
These doctrines and case law provide a good starting point for a foreign sovereign anti-SLAPP statute. A pure political lawsuit in the United States results when the defendant is simultaneously sued civilly in U.S. courts and prosecuted abroad for alleged crimes directed against the foreign state. But the statute should go much further by including relative political lawsuits. In dictatorships, political dissidents can oppose the ruling regime through public acts that are closer to the political asylum standard of persecution based on a "political opinion." Therefore, relative political lawsuits in the United States result when there is evidence that the defendant opposed a foreign regime through a legitimate public act—an exercise of free speech, including petitions, peaceful protests, commercial decisions, or statements to local and foreign press—and was thereafter sued in U.S. courts. Crucially, just like in the asylum context, a defendant would only need to show that a political opinion was "at least one central reason" for the civil lawsuit in the United States. This standard would resolve the problem of proxy plaintiffs filing facially legitimate complaints that are also partially motivated by political persecution abroad.
The statute should also explicitly address the problem of proxies suing to promote the interests of foreign governments. The statute here can draw on analogous inquiries that courts conduct when they pierce the veil of corporate structures, analyze who the "real party in interest" is in a federal case, or scrutinize whether a legal party is merely an agent for someone else. Defendants would first have the burden to show that a foreign individual is merely a proxy of a foreign government. The statute should err on the side of a broad definition because, at worst, it is merely raising the standards on innocent foreign plaintiffs to file lawsuits in U.S. courts. So, there should be a presumption that state-owned entities and government officials (current or former) are proxies of a foreign government, even if they claim to be suing in their individual capacity. Same, too, for foreign oligarchs closely linked to autocratic regimes. For entities that appear independent, courts should focus on whether a foreign country is the primary beneficiary of the lawsuit or exercises ultimate control over the plaintiff, lawyers, or the legal claim. If met, the burden would shift to plaintiffs to prove otherwise …
A Foreign Sovereign Anti-SLAPP statute would prevent many of the most egregious cases discussed above. It would have stopped Castro's case against the sugar company in Sabbatino; China's array of cases against corruption suspects; Turkey's claim against Gulen; Russia and Venezuela's many claims against dissidents. Such a statute would be a boon for democracy around the world.
For the dictators-as-defendants problem, I propose the following. First, it is time to reconsider the act of state doctrine. The doctrine unduly enables foreign dictatorships to enjoy asymmetrical benefits. While it is justified as a comity-based rule that avoids "inadvertently caus[ing] foreign policy tensions or crises by offending other nations," there is no evidence that it has prevented international tensions and no reason at all to think it does.
Second, courts and Congress should expand exceptions to the FSIA, including the counterclaim exception:
One potential avenue is to expand the implicit waiver and counterclaims exceptions. The FSIA provides in § 1605 (a)(1) that "a foreign state shall not be immune … in any case … in which the foreign state has waived its immunity either explicitly or by implication." In the face of this broad language, however, courts have been "reluctant to find implied waivers, requiring strong evidence of the foreign state's intent." It appears that courts have only found implied waivers when "a foreign state has agreed to arbitration in another country … that a contract is governed by the law of another foreign country, or … has filed a responsive pleading in a case without raising the defense of sovereign immunity." But there is no reason why courts cannot return to a more common-sense reading of the phrase "by implication" that would include other types of waiver.
Moreover, the counterclaim exception in § 1607(b) also removes immunity with respect to any counterclaim "arising out of the transaction or occurrence that is the subject matter of the affirmative claim." Again, the phrase "transaction or occurrence" can be interpreted broadly, especially because the exception it hinges on how courts read "subject matter."
Combining the counterclaim and waiver exceptions, courts may be able to find that foreign dictators waive immunity for any claims related to cases in which they are plaintiffs. We could refer to this as "subject-matter waiver." For example, if, as in Sabbatino, Cuba sues American companies to enforce expropriations stemming from a particular Cuban executive order, courts may read that action as implicitly waiving immunity for any claims against Cuba arising out of the same executive order. This would operate as a waiver of all claims arising out of the same subject-matter and would draw from both the implicit waiver and counterclaims exceptions. Similarly, if Venezuelan officials sue the Wall Street Journal in U.S. court, courts may read that as waiving sovereign immunity for cases arising out of journalistic activities in Venezuela. Such an approach would end the strange asymmetry that I discussed above. To be sure, these subject-matter waivers may also be difficult to administer. For example, typically counterclaim waiver is specific to any claims by the defendants but here it would allow third-parties to file separate claims. Although problems could arise, this option is worth further exploration.
Without going into details here, I also counsel that courts can limit the scope of foreign official immunity.
Foreign dictators have been litigants in our courts since the beginning of the Republic. But there is no need to grant them the current level of access to court or comity protections. Foreign dictators have no right to benefit from comity doctrines designed in a different time and place. Doctrines like act of state, the privilege of bringing suit, or official immunity can adapt to a modern world under threat from democratic regression. U.S. courts and Congress should take up the baton and, in a careful and targeted way, recalibrate comity in these cases.