Skip to main content
All
August 12, 2026

Same Flag, Different Rules: The FSIA’s State-Instrumentality Divide

Advisory
By

The Foreign Sovereign Immunities Act of 1976 (FSIA) shields foreign states from suit in the United States and protects certain sovereign property from seizure by court order. As we explained in our January 2021 Advisory, the term “foreign state” sweeps broadly; it covers not only the foreign sovereign itself but also its “political subdivisions” and its “agencies and instrumentalities.” But those different classifications matter. Whether a defendant is the foreign state itself, a political subdivision, or an agency or instrumentality can affect the rules governing service of process, the availability of certain immunity defenses, and the scope of attachment and execution protections.

Classifying an entity is not always straightforward. Foreign governments operate through an array of nominally distinct entities — ministries, regulatory bodies, subnational governments, state-owned enterprises, museums, universities, and sovereign wealth funds, to name a few — and courts do not always agree on where particular entities fall within the FSIA’s definitional framework.

In this Advisory, we explain what kinds of sovereign entities are entitled to immunity, how courts draw those distinctions, and why getting it right can matter from the outset of a case.

The Three Categories of FSIA Defendants

The FSIA affords foreign states two related but distinct protections: immunity from suit and immunity from attachment and execution against certain property. Although those protections are subject to statutory exceptions — such as the commercial activity exception, the expropriation exception, and the terrorism exception — they extend only to defendants who qualify as “foreign states” under the statute. The FSIA itself makes clear that “foreign state” is a broad term: it covers (1) the foreign state itself, (2) a “political subdivision of a foreign state,” and (3) “an agency or instrumentality of a foreign state.”1

Foreign States

Of course, a “foreign state” includes the state proper — that is, an entity that has a defined territory and a permanent population, under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other states.2 Beyond the state proper, courts routinely define national governments, embassies, permanent missions, armed forces, and government ministries as part of the “foreign state” — because these entities are so closely bound up with the structure of the sovereign that they defy treatment as anything else.3 Foreign ministries, in particular, are treated as foreign states, because the management of a country’s foreign affairs is an indispensable government function.4

In unusual circumstances, a political party may qualify as a foreign state. In Missouri v. People’s Republic of China — a suit seeking damages against the People’s Republic of China and various related entities for their role in the COVID-19 pandemic — the Eighth Circuit held that the Chinese Communist Party was the “alter ego” of the Chinese state and therefore entitled to immunity as the sovereign itself.5 Political parties are not ordinarily treated as the state itself,6 but the court reasoned that the Chinese Communist Party, by exercising pervasive control over the Chinese government and all other defendants in the case, effectively constituted the “body politic” governing China.7

Political Subdivisions of Foreign States

Before the passage of the FSIA, courts generally did not consider cities and towns of foreign nations to be immune from suit.8 But the FSIA extended the umbrella of immunity to “political subdivisions” of a foreign state, which include regional subdivisions of the state, such as cities, districts, cantons, provinces, and territories.9 So, cities like Amsterdam are protected from suit.10

The line between a foreign state and its political subdivisions, however, is not always clear. Courts sometimes describe — incorrectly, in our view — certain ministries or other core components of a national government as political subdivisions rather than as the state itself. The Fourth Circuit, for instance, has held that the Iraqi Ministry of Defense qualifies as a political subdivision of Iraq,11 while other courts have treated core governmental components — including foreign ministries, armed forces, intelligence services, and diplomatic missions — as part of the foreign state itself.12 Courts have also held offices within ministries to be political subdivisions — among them, the Chief Mining Commissioner of Zimbabwe’s Ministry of Mines13 and the Office of the Minister of Finance of Trinidad14 — even though Congress suggested that “a department or ministry which acts and is suable in its own name” could be an agency or instrumentality rather than a political subdivision.15

For practical purposes, though, the distinction between the foreign state itself and its political subdivisions usually does not matter. The FSIA treats foreign states and their political subdivisions identically for purposes of service, immunity, and attachment. The real action is in distinguishing foreign states and subdivisions from agencies and instrumentalities.

Agencies and Instrumentalities of Foreign States

An “agency” or “instrumentality” of a foreign state is an entity that is (1) “a separate legal person, corporate or otherwise”; (2) “an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof”; and (3) neither a citizen of a U.S. state nor created under the laws of any third country.16 The critical feature is legal separateness: unlike ministries or regional governments, agencies and instrumentalities are distinct legal entities, even when closely tied to the sovereign.

State-owned enterprises — like national airlines, art galleries, telecommunications companies, railways, petroleum companies, and sovereign wealth funds — are paradigmatic examples of agencies or instrumentalities.17 Central banks have also been treated as agencies or instrumentalities of the sovereign,18 as have some cultural and educational institutions, including state universities and museums.19 The Eighth Circuit extended that analysis to the Wuhan Institute of Virology and the Chinese Academy of Sciences, finding both legally separate from the Chinese state and thus agencies or instrumentalities, even though they remained closely connected to it.20

How Courts Decide Whether an Entity Is an Agency or Instrumentality (Rather Than Part of the State Itself)

Courts have provided different articulations of the inquiry into whether an entity is an agency or instrumentality, rather than part of the state itself. However framed, the basic question is whether the entity is meaningfully separate from the foreign state itself. In practice, the analysis usually turns on the entity’s function, its relationship to the state, and its ownership structure.

The Core Functions Test

Some courts apply the so-called “core functions” test to determine whether an entity is sufficiently separate from the foreign state.21 That test looks to whether the entity’s predominant functions are governmental or commercial.22 If those functions are governmental — for example, diplomacy, military operations, or foreign affairs — courts tend to treat the entity as part of the state itself.23 If the entity’s core functions are mainly commercial — for example, those of a national oil company — courts are more likely to treat it as a separate agency or instrumentality.24

But that does not mean any entity connected to commercial activity is automatically commercial and not part of the state for FSIA purposes. One court held, for example, that while Zimbabwe’s Chief Mining Commissioner’s duties “unquestionably touch on commercial activity,” the commissioner’s role in connection with that activity was “as a government regulator and adjudicator” — “not as a market participant” — and the commissioner thus remained part of the state.25 By contrast, the same court found in a different case that a state-owned museum’s functions were “largely commercial,” and so classified that entity as an agency or instrumentality.26

The Organ Inquiry

Other courts proceed more directly from Section 1603(b)’s statutory categories by asking whether an entity qualifies as an “organ” of the state or is majority-owned by one. Because the FSIA does not define “organ,” courts have developed different multi-factor tests.27 The most widely applied framework examines:

(1) whether the foreign state created the entity for a national purpose; (2) whether the foreign state actively supervises the entity; (3) whether the foreign state requires the hiring of public employees and pays their salaries; (4) whether the entity holds exclusive rights to some right in the [foreign] country; and (5) how the entity is treated under foreign state law.28

These factors are not applied mechanically, nor must they all be met for an entity to qualify as an organ.29 After all, most entities of this type will likely share characteristics of both governmental and non-governmental bodies.30 At bottom, though, the key consideration is “the entity’s ability to act independently.”31

Majority Ownership

The final way an entity can be classified as an agency or instrumentality of a foreign state is if the state or political subdivision thereof directly owns a majority stake in that entity.32

Direct Ownership. The entity must be more than 50% directly owned by the state to qualify for immunity. The Supreme Court has held that indirect ownership, where the entity is “separated from the [state] by one or more intermediate corporate tiers,” is insufficient.33 Applying the majority-ownership test, one court has held that the Korean government’s ownership of up to 70% of the Korea Asset Management Corporation was unavailing because its direct ownership stake was only 42.8% — insufficient to satisfy the majority test.34 Therefore, the entity could qualify as an agency or instrumentality only if it were also an organ of Korea.

Timing of Ownership. The Supreme Court has held that FSIA instrumentality status is ordinarily assessed “at the time suit is filed,” not at the time of the alleged wrong.35 Thus, a French railroad company could invoke the FSIA even though it had been privately owned during World War II (when the claims arose), because France wholly owned that entity when the suit was filed.36 In the Second Circuit, however, FSIA immunity may also attach “mid-suit” if a foreign state acquires majority ownership after the complaint is filed.37 The practical implication is that sovereign status must be monitored throughout the life of the case, particularly where sanctions, nationalizations, restructurings, or other events alter a sovereign’s ownership stake after suit is filed.

What the FSIA Does Not Cover

Prior to 2010, several courts of appeals had applied the FSIA’s protections to foreign officials, in addition to foreign government entities. The Supreme Court clarified in Samantar v. Yousuf that foreign officials are not “foreign states” within the meaning of the act. Their immunity, if any, is governed instead by common law.38

Nor does the FSIA govern diplomatic or consular immunity.39 Those immunities are instead governed by separate treaty-and-statute frameworks, including the Vienna Convention on Diplomatic Relations, the Diplomatic Relations Act, and the Vienna Convention on Consular Relations.40

Distinctions With a Difference

An entity’s classification as a foreign state or political subdivision on the one hand, or as an agency or instrumentality on the other, is not mere semantics. It determines how the entity must be served and can even control the substantive immunity protections to which it is entitled under the FSIA.

Service of Process

Classifications matter from the outset of a case. Service on a foreign state or political subdivision is governed by Section 1608(a),41 which imposes an inflexible, hierarchical sequence of service methods: plaintiffs must first attempt service under any applicable international convention on service of judicial documents (or any special arrangement between the plaintiff and the state); if that fails, the clerk of court must dispatch the summons and complaint and a notice of suit (with translations) addressed to the head of the relevant ministry of foreign affairs; and if that also fails, the clerk may transmit documents through the U.S. Secretary of State via diplomatic channels.42 The service provisions for states and political subdivisions must be “strict[ly]” followed.43

By contrast, service on an agency or instrumentality is governed by Section 1608(b).44 Although Section 1608(b) must also be closely followed, it is more flexible, resembles rules applicable to corporate defendants,45 and allows for a broader range of service methods — including delivery to an authorized agent in the United States or certain other methods reasonably calculated to give actual notice.46

Cases can — and do — fail because of improper service under the FSIA.47 A plaintiff that serves the wrong type of defendant under the wrong provision may face a motion to dismiss for insufficient service of process or be forced to start the time-consuming service process anew.

Substantive Immunity Protections

Classifications also matter when plaintiffs invoke FSIA exceptions to immunity, as agencies and instrumentalities are subject to a slightly different set of immunity protections than foreign states and their political subdivisions. The so-called expropriation exception in Section 1605(a)(3) is a leading example. As we explained in our January 2021 Advisory, this provision strips certain foreign state entities of sovereign immunity when property is taken in violation of international law so long as that property has the requisite connection to the United States. For claims against the foreign state itself, a plaintiff generally must show that the expropriated property — or any property exchanged for it — is “present in the United States in connection with [that state’s] commercial activity carried on in the United States.”48 For claims against an agency or instrumentality, the requirement is more relaxed: it is enough that the property be “owned or operated” by an agency or instrumentality that is engaged in commercial activity in the United States, regardless of whether that property is, in fact, used in connection with any U.S. commercial activity.49 The property itself need not be present in the United States. That asymmetry incentivizes some sovereign defendants to argue that they are the foreign state itself, rather than an agency or instrumentality, to invoke the more demanding standard of Section 1605(a)(3)’s first clause.50 Conversely, some plaintiffs have sought to extend the more permissive second clause to the foreign state itself. The D.C. Circuit has repeatedly rejected that argument,51 but the Ninth Circuit’s position is less clear: it has upheld jurisdiction over foreign states even though only the second clause was met — though each time without providing any reasoning.52

Immunity From Attachment

Even if a plaintiff establishes jurisdiction and obtains a judgment, the FSIA separately shields sovereign property from attachment and execution absent a statutory exception.53 Here too, classifications matter. For property of a foreign state or political subdivision, creditors ordinarily must show that the specific property at issue is or was used for commercial activity in the United States.54 For property of an agency or instrumentality, additional statutory exceptions apply, and the standard is generally less demanding: a creditor need only show that the agency or instrumentality itself is generally engaged in commercial activity in the United States — not that the property sought to be attached is used for that purpose.55

Damages and Venue

Agencies and instrumentalities can be held liable for punitive damages,56 whereas foreign states and their political subdivisions generally cannot — except in limited cases defined by statute, such as certain terrorism claims.57 Some venue provisions differ for agencies and instrumentalities and for states: the FSIA subjects agencies and instrumentalities to suit wherever they are licensed to do business or are doing business, while foreign states and political subdivisions can always be sued in the District of Columbia.58

Conclusion

Whether a defendant is the foreign state itself, a political subdivision, or an agency or instrumentality is not always easy to determine. Courts have reached different conclusions about regulators, cultural institutions, and other affiliated entities, and judges do not always agree on the applicable tests. But the classification matters; a defendant’s status triggers different rules for service, immunity, attachment, venue, and damages.

Arnold & Porter has represented foreign state clients — from every continent except Antarctica — in FSIA proceedings across the United States. Please contact us if you have questions about how any of these issues may arise in a particular matter. 

© Arnold & Porter Kaye Scholer LLP 2026 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

  1. 28 U.S.C. § 1603(a). To illustrate these categories using the government of Canada: (1) would include Canada, (2) would include British Columbia, and (3) would include the Canada Post Corporation. 

  2. Restatement (Fourth) of Foreign Relations Law § 452 cmt. a (A.L.I. 2018). 

  3. See Restatement (Fourth) of Foreign Relations Law § 452 cmt. b; id. § 452 reporters’ note 3; see also, e.g., Garb v. Republic of Poland, 440 F.3d 579, 594 (2d Cir. 2006) (Poland’s Ministry of Treasury was an “integral part of Poland’s political structure”); Transaero, Inc. v. La Fuerza Aerea Boliviana, 30 F.3d 148, 153 (D.C. Cir. 1994) (Air Force of Bolivia was a foreign state); S.K. Innovation, Inc. v. Finpol, 854 F. Supp. 2d 99, 108 (D.D.C. 2012) (Kazakhstan’s Agency on Economic Crimes and Corruption was a foreign state).

  4. See, e.g., Roeder v. Islamic Republic of Iran, 333 F.3d 228, 234 (D.C. Cir. 2003) (holding that the Iranian Ministry of Foreign Affairs warranted classification as part of the state itself).

  5. Missouri ex rel. Bailey v. People’s Republic of China, 90 F.4th 930, 934 (8th Cir. 2024).

  6. See, e.g., Tachiona v. United States, 386 F.3d 205, 222 (2d Cir. 2004) (holding that Zimbabwe’s ruling party was a “private entity and not an agency or instrumentality of a foreign state”).

  7. Missouri ex rel. Bailey, 90 F.4th at 935.

  8. Restatement (Third) of Foreign Relations Law § 452 cmt. b (A.L.I. 1987); id. § 452 reporters’ note 1; see also E.H. Schopler, Annotation, Modern Status of the Rules as to Immunity of Foreign Sovereign from Suit in Federal or State Courts, 25 A.L.R.3d 322, § 6&#91a&#93 (1969) (noting that, though the Second Restatement stated definitively that constituent units of a state were not entitled to immunity, courts disagreed with each other on this issue).

  9. Restatement (Fourth) of Foreign Relations Law § 452 reporters’ note 2 (collecting cases).

  10. Malewicz v. City of Amsterdam, 362 F. Supp. 2d 298, 306 (D.D.C. 2005); see also Beierwaltes v. L’Office Federale De La Culture De La Confederation Suisse, 999 F.3d 808, 819 (2d Cir. 2021) (Canton of Geneva “undisputed&#91ly&#93” a political subdivision of Swiss Confederation); Big Sky Network Canada, Ltd. v. Sichuan Provincial Gov’t, 533 F.3d 1183, 1189 (10th Cir. 2008) (Sichuan Province and Qinyang District were political subdivisions of the People’s Republic of China); Restatement (Third) of Foreign Relations Law § 452 cmt. b (explaining that, under the FSIA, “constituent units of federal unions,” including “cantons,” “are entitled to sovereign immunity to the same extent as the federal state itself”); Restatement (Fourth) of Foreign Relations Law § 452 reporters’ note 2 (“States and provinces are political subdivisions under the FSIA.”). 

  11. Wye Oak Tech., Inc. v. Republic of Iraq, 666 F.3d 205, 215 (4th Cir. 2011); see also Garb, 440 F.3d at 596 n.21 (suggesting that “political subdivisions” in the FSIA refers to all governmental units beneath the central government, rather than different geographical subdivisions of government).

  12. See Restatement (Fourth) of Foreign Relations Law § 452 cmt. b; id. § 452 reporters’ note 3; see also Ben-Rafael v. Islamic Republic of Iran, 718 F. Supp. 2d 25, 32 (D.D.C. 2010) (holding that the Iranian Revolutionary Guard Corps was a governmental entity and thus the foreign state itself); Gates v. Syrian Arab Republic, 580 F. Supp. 2d 53, 64 (D.D.C. 2008) (holding that the Syrian military intelligence service was the “foreign state itself”), aff’d, 646 F.3d 1 (D.C. Cir. 2011); Int’l Rd. Fed’n v. Embassy of the Democratic Republic of the Congo, 131 F. Supp. 2d 248, 250 (D.D.C. 2001) (holding that an embassy of the Democratic Republic of the Congo was a foreign state); Berdakin v. Consulado de la Republica de El Salvador, 912 F. Supp. 458, 461 (C.D. Cal. 1995) (holding that a consulate of El Salvador qualified as a foreign state).

  13. Amaplat Mauritius Ltd. v. Zimbabwe Mining Dev. Corp., 663 F. Supp. 3d 11, 28 (D.D.C. 2023), rev’d in part, vacated in part, and remanded with instructions to dismiss for lack of jurisdiction, 143 F.4th 496 (D.C. Cir. 2025), cert. denied, No. 25-699, 2026 WL 1127199 (U.S. Apr. 27, 2026).

  14. Singh ex rel. Singh v. Caribbean Airlines Ltd., 798 F.3d 1355, 1359-60 (11th Cir. 2015); see also Missouri ex rel. Bailey, 90 F.4th at 935 (holding that China’s Ministry of Civil Affairs, Ministry of Emergency Management, and National Health Commission, as well as provincial and township-level bodies, were political subdivisions of China based on their direct connection to the official government).

  15. H.R. Rep. No. 94-1487, at 15 (1976), reprinted in 1976 U.S.C.C.A.N. 6604, 6614.

  16. 28 U.S.C. § 1603(b).

  17. See Havlish v. Taliban, 152 F.4th 339, 357 (2d Cir. 2025), reh’g en banc denied, 170 F.4th 100 (2d Cir. 2026) (holding that Da Afghanistan Bank was an agency or instrumentality of the state of Afghanistan); Chey v. Orbitz Worldwide, Inc., 983 F. Supp. 2d 1219, 1228 (D. Haw. 2013) (holding that foreign airline, a majority of whose shares were owned by China, was an agency or instrumentality of China); Bayer & Willis Inc. v. Republic of Gambia, 283 F. Supp. 2d 1, 4 (D.D.C. 2003) (holding that a Gambian telecommunications company 99% owned by The Gambia was an “agency or instrumentality” of The Gambia); Abrams v. Société Nationale Des Chemins De Fer Français, 389 F.3d 61, 63 (2d Cir. 2004) (holding that the French national railroad company was an agency or instrumentality); Adler v. Fed. Republic of Nigeria, 107 F.3d 720, 723 (9th Cir. 1997) (holding that the Nigerian National Petroleum Corporation was an instrumentality of Nigeria); Janvey v. Libyan Inv. Auth., 840 F.3d 248, 259 (5th Cir. 2016) (holding that the Libyan Investment Authority, a sovereign wealth fund, was an instrumentality of Libya).

  18. Adler, 107 F.3d at 723 (holding that the Central Bank of Nigeria was an instrumentality of Nigeria); Weininger v. Castro, 462 F. Supp. 2d 457, 497 (S.D.N.Y. 2006) (holding that the central bank of Cuba was an agency or instrumentality); S & S Mach. Co. v. Masinexportimport, 706 F.2d 411, 414 (2d Cir. 1983) (holding that “&#91&#93tate-owned central banks indisputably are included in the § 1603(b) definition of ‘agency or instrumentality.’”).

  19. Compare de Csepel v. Republic of Hungary, 169 F. Supp. 3d 143, 167 (D.D.C. 2016) (holding that museums were an agency or instrumentality of Hungary, and observing that defendants already admitted that those museums and a state university were agencies or instrumentalities), aff’d in part, appeal dismissed in part, and remanded, 859 F.3d 1094 (D.C. Cir. 2017), and Altmann v. Republic of Austria, 317 F.3d 954, 969 (9th Cir. 2002) (observing that the defendants did not contest that the Austrian Gallery is an agency or instrumentality of Austria), amended on denial of reh’g, 327 F.3d 1246 (9th Cir. 2003), aff’d on other grounds, 541 U.S. 677 (2004), with Berg v. Kingdom of the Netherlands, 24 F.4th 987, 993-96 (4th Cir. 2022) (concluding that Ministry of Education, Culture & Science of the Netherlands and Cultural Heritage Agency of the Netherlands were not separate legal persons but instead political subdivisions of the Netherlands), and Taylor v. Kingdom of Sweden, No. 18-cv-1133, 2019 WL 3536599, at *4 (D.D.C. Aug. 2, 2019) (concluding that Sweden’s National Museum of World Culture’s core functions were “intertwined with Sweden’s sovereign obligations such that &#91it was&#93 part of the foreign state”).

  20. Missouri ex rel. Bailey, 90 F.4th at 935.

  21. Restatement (Fourth) of Foreign Relations Law § 452 reporters’ notes 4-5; Transaero, 30 F.3d at 153; Garb, 440 F.3d at 592.

  22.  Transaero, 30 F.3d at 153; Garb, 440 F.3d at 594.

  23.  See, e.g., Transaero, 30 F.3d at 153 (holding that the Bolivian Air Force was part of the Bolivian state itself); Roeder, 333 F.3d at 234 (holding that “&#91t&#93he conduct of foreign affairs is an important and ‘indispensable’ government function,” so that the Iranian Ministry of Foreign Affairs was part of Iran itself).

  24.  See Transaero, 30 F.3d at 152; see also Adler, 107 F.3d at 723.

  25.  Amaplat, 663 F. Supp. 3d at 28.

  26.  de Csepel, 169 F. Supp. 3d at 167.

  27. Restatement (Fourth) of Foreign Relations Law § 452 reporters’ note 5; see Kelly v. Syria Shell Petroleum Dev. B.V., 213 F.3d 841, 846 (5th Cir. 2000).

  28.  Kelly, 213 F.3d at 846-47 (quoting Supra Med. Corp. v. McGonigle, 955 F. Supp. 374, 379 (E.D. Pa. 1997)); accord Filler v. Hanvit Bank, 378 F.3d 213, 217 (2d Cir. 2004). Other circuits have devised tests that include and expand upon the same five factors. See, e.g., EIE Guam Corp. v. Long Term Credit Bank of Japan, Ltd., 322 F.3d 635, 640 (9th Cir. 2003) (employing similar test that includes an additional sixth factor, “the level of government financial support”); USX Corp. v. Adriatic Ins. Co., 345 F.3d 190, 209 (3d Cir. 2003) (employing the same test as the Ninth Circuit, with the addition of a seventh factor, “the ownership structure of the entity”).

  29.  See Kelly, 213 F.3d at 847; Murphy v. Korea Asset Mgmt. Corp., 421 F. Supp. 2d 627, 645 (S.D.N.Y. 2005), aff’d, 190 F. App’x 43 (2d Cir. 2006).

  30.  See Murphy, 421 F. Supp. 2d at 641.

  31.  Gates v. Victor Fine Foods, 54 F.3d 1457, 1461 (9th Cir. 1995); see Havlish, 152 F.4th at 357 (implying that Da Afghanistan Bank would not satisfy the organ prong because “the Afghanistan banking law vests &#91it&#93 with substantial autonomy”).

  32.  Dole Food Co. v. Patrickson, 538 U.S. 468, 477 (2003); see, e.g., Havlish, 152 F.4th at 357 (holding that Da Afghanistan Bank satisfied the majority-ownership prong because it was “100% owned by Afghanistan”).

  33.  Dole Food, 538 U.S. at 473.

  34.  Murphy, 421 F. Supp. 2d at 640 & n.12, 645.

  35.  Dole Food, 538 U.S. at 478-80 (holding that chemical companies were not entitled to instrumentality status because “&#91a&#93ny relationship recognized under the FSIA between &#91them&#93 and Israel had been severed before suit was commenced”).

  36.  Abrams, 389 F.3d at 64-65.

  37.  Bartlett v. Baasiri, 81 F.4th 28, 33 (2d Cir. 2023); see Schansman v. Sberbank of Russia PJSC, 128 F.4th 70, 80 (2d Cir. 2025), cert. denied, 146 S. Ct. 117 (2025) (holding that Russian bank qualified as an agency or instrumentality under the FSIA after the Russian Ministry of Finance acquired a majority ownership interest post-filing).

  38.  Samantar v. Yousuf, 560 U.S. 305 (2010).

  39.  Id. at 319 n.12.

  40. Vienna Convention on Diplomatic Relations art. 31, Apr. 18, 1961, 23 U.S.T. 3227, 500 U.N.T.S. 95; Vienna Convention on Consular Relations art. 43, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261; Diplomatic Relations Act, Pub. L. No. 95-393, 92 Stat. 808 (1978).

  41. 28 U.S.C. § 1608(a); see Gibbons v. Republic of Ireland, 532 F. Supp. 668, 671 (D.D.C. 1982).

  42.  See 28 U.S.C. § 1608(a)(1)-(4); Republic of Sudan v. Harrison, 587 U.S. 1, 4-5 (2019) (explaining that § 1608(a) sets out “in hierarchical order” the methods for serving a foreign state or political subdivision).

  43.  Harrison, 587 U.S. at 19.

  44. 28 U.S.C. § 1608(b).

  45. Restatement (Fourth) of Foreign Relations Law § 461 cmt. a.

  46.  Howe v. Embassy of Italy, 68 F. Supp. 3d 26, 32 (D.D.C. 2014) (quoting 28 U.S.C. § 1608(b)(3)).

  47.  See, e.g., Harrison, 587 U.S. at 4, 19 (reversing where the service packet was mailed to the foreign state’s embassy rather than to the foreign minister’s office in the foreign state); Saint-Gobain Performance Plastics Europe v. Bolivarian Republic of Venezuela, 23 F.4th 1036 (D.C. Cir. 2022) (finding service under § 1608(a)(2) and the Hague Convention defective because Venezuelan law requires service on Attorney General, who was never served); Magness v. Russian Fed’n, 247 F.3d 609, 611-13 (5th Cir. 2001) (finding service defective where plaintiff “sen&#91t&#93 the summons and complaint directly to the Russian Deputy Minister of Culture” rather than “asking the clerk of the district court to send the summons and notice of suit”); Transaero, 30 F.3d at 153-54 (vacating default judgment where plaintiff did not “strict&#91ly&#93 adhere&#91 &#93 to the terms of § 1608(a)” in serving Bolivian Air Force, and “actual notice” of suit could not cure defective service); Adetoro v. King Abdullah Acad., No. 1:19-cv-01918, 2019 WL 3457989, at *3 (D.D.C. July 30, 2019) (finding service “not strictly compliant” and therefore invalid where plaintiffs “themselves mailed the documents rather than the clerk of the court”).

  48. 28 U.S.C. § 1605(a)(3).

  49. 28 U.S.C. § 1605(a)(3).

  50. For example, in Holtzman v. Kunstmuseen Krefeld, a German municipal art museum moved to dismiss on the ground that it was part of the foreign state itself and thus immune from suit because the disputed paintings were not present in the United States. 805 F. Supp. 3d 368, 376 (D.D.C. 2025). The court rejected that argument, holding that the museum’s core functions — exhibition, acquisition, and collection management — were commercial rather than governmental, and that the museum was therefore an agency or instrumentality subject to suit. Id. at 376-77.

  51.  Agudas Chasidei Chabad of U.S. v. Russian Fed’n, 110 F.4th 242, 250 (D.C. Cir. 2024), cert. denied, No. 24-909, 2026 WL 135737 (U.S. Jan. 20, 2026); Philipp v. Fed. Republic of Germany, 894 F.3d 406, 414 (D.C. Cir. 2018), vacated on other grounds and remanded, 592 U.S. 169 (2021); Schubarth v. Fed. Republic of Germany, 891 F.3d 392, 401 (D.C. Cir. 2018); de Csepel v. Republic of Hungary, 859 F.3d 1094, 1107-08 (D.C. Cir. 2017).

  52.  Altmann, 317 F.3d at 968-69; Cassirer v. Kingdom of Spain, 616 F.3d 1019, 1022, 1028-34 (9th Cir. 2010) (en banc); Sukyas v. Romania, 765 F. App’x 179, 180 (9th Cir. 2019). In Cassirer, the Ninth Circuit affirmed jurisdiction over Spain and its instrumentality based on the instrumentality’s ownership of the expropriated property and its commercial activity in the United States, but without engaging in independent analysis of jurisdiction over Spain. 616 F.3d at 1028-34. Later, however, the United States explained that the parties and the court had erroneously assumed that jurisdiction over the instrumentality also supplied jurisdiction over Spain under Section 1605(a)(3)’s second clause, and the plaintiffs then voluntarily dismissed Spain. See Brief for the United States as Amicus Curiae at 15-16, Kingdom of Spain v. Estate of Cassirer, No. 10-786, 2011 WL 2135028 (U.S. May 27, 2011); Cassirer v. Thyssen-Bornemisza Collection Found., 737 F.3d 613, 617 (9th Cir. 2013).

  53. 28 U.S.C. § 1610(a); Restatement (Fourth) of Foreign Relations Law § 464 cmt. a.

  54. 28 U.S.C. § 1610(a)(2).

  55. 28 U.S.C. § 1610(b). In cases brought under the FSIA’s terrorism exception, however, the ordinary distinction between state property and agency property matters less. That is because Congress has authorized attachment of certain property of a foreign state’s agencies or instrumentalities to satisfy a terrorism judgment against the state. Id. § 1610(g)(1). That said, Section 1610(g) does not provide a freestanding basis for attachment and execution. See Rubin v. Islamic Republic of Iran, 583 U.S. 202, 218-19 (2018). Instead, a judgment holder must still identify an applicable immunity exception elsewhere in Section 1610. See id. at 212-13.

  56. 28 U.S.C. § 1606.

  57. 28 U.S.C. §§ 1605A(c), 1606.

  58. 28 U.S.C. § 1391(f)(1), (3)-(4).

Find more content tagged:

Key Contacts

John B. Bellinger, III
John B. Bellinger, III
Partner
Washington, D.C.
+1 202.942.6599
R. Reeves Anderson
R. Reeves Anderson
Partner
Denver
+1 303.863.2325
Sally Pei
Sally Pei
Partner
Washington, D.C.
+1 202.942.6581
Dana Khabbaz
Dana Khabbaz
Associate
New York
+1 212.836.7182
Hannah M. Beiderwieden
Hannah M. Beiderwieden
Associate
Washington, D.C.
+1 202.942.5468
Jack Hoover
Jack Hoover
Associate
Washington, D.C.
+1 202.942.6747
Aaron Sobel
Aaron Sobel
Associate
Washington, D.C.
+1 202.942.5212

Related Services