Fitch Arguments Prevail as Supreme Court Rules on How Foreign Governments May Be Served with Process

Photo of Jared L. Hubbard

On March 26, 2019, the Supreme Court reversed the Second Circuit in the case of Sudan v. Harrison, which involved how foreign states may be served under the Foreign Sovereigns Immunities Act (“FSIA”).  28 USC § 1608 governs service of process on foreign states, and explains that a foreign state may be served (1) “in accordance with any special arrangement,” (2) “in accordance with an applicable international convention on service of judicial documents,” (3) “by sending a copy of the summons and complaint and a notice of suit … by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned,” or (4) by requesting the State Department to make service on the foreign state.  In Sudan v. Harrison, the plaintiffs mailed service of process to the head of the ministry of foreign affairs care of Sudan’s US embassy.  When Sudan did not answer the complaint, a $314 million default judgment entered, which Sudan then challenged asserting that the mailing should have gone to the head of the ministry of foreign affairs at the actual ministry of foreign affairs, where that official works.

Jared Hubbard of Fitch Law Partners represented a group of international law professors as amicus counsel before the Supreme Court in the case.  The amici included George Bermann of Columbia Law School and David Stewart of Georgetown Law School.  They argued that service must be made on the ministry of foreign affairs under international law, and that the Vienna Convention on Diplomatic Relations prohibits service on embassies.  The Supreme Court ruled in favor of the law professors, holding that under the statute, “addressed and dispatched” to the head of the ministry of foreign affairs means sending it to the actual ministry of foreign affairs.  The Court’s decision was largely directed to the question of what the terms “addressed and dispatched” mean under the statute, but the Court noted that its interpretation avoided any possible conflict with the international law issues raised by the law professors.

The Supreme Court’s ruling keeps United States law in line with international law and practice.  For plaintiffs here in the United States (or suing via United States courts), it means that the provisions of the FSIA must be followed explicitly, with service appropriately sent, before any judgment will be recognized against a foreign sovereign.

If you have any questions about suing foreign governments, agents, companies, or individuals, the experienced attorneys at Fitch are here to help.


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