Orrick Team Asks U.S. Supreme Court to Address Key Foreign Sovereign Immunity Issue

November.21.2016

In a petition for writ of certiorari filed in the U.S. Supreme Court today, an Orrick team asked the Court to address an important jurisdictional issue under the Foreign Sovereign Immunities Act. The petition explains that the U.S. Court of Appeals for the Ninth Circuit erred when it held that the Indian Institute of Technology, Kharagpur, an entity of the Republic of India, implicitly waived its foreign sovereign immunity from suit in the United States when it agreed to a choice-of-law provision selecting U.S. law to govern a nondisclosure agreement.

Led by Washington, D.C.-based appellate partner Bob Loeb, the petition emphasizes that waiver under the FSIA requires strong evidence of the foreign sovereign entity’s intent to forego immunity. Questions of waiver are therefore not properly resolved by categorical rules, which ignore relevant evidence of the sovereign’s intent by focusing on only one provision in the parties’ agreement. The petition notes that courts of appeals have rejected waiver-related categorical rules in other FSIA contexts, and urges the Court to similarly reject the rule regarding choice-of-law provisions the Ninth Circuit applied in this case. The petition further explains that because waivers of immunity must be narrowly construed, the court of appeals also erred by extending the asserted waiver beyond claims of breach of the nondisclosure agreement itself. 

The cert petition can be read here.

In addition to Bob, the Orrick team includes partners Neel Chatterjee and Thomas Zellerbach, and associates Kevin Arlyck, Ned Hirschfeld, Judy Kwan and Nish Hossain.