Bolivarian Republic of Venezuela v. Helmerich & Payne Int'l Drilling Co., 137 S. Ct. 1312 (2017) (U.S. Supreme Court)
Bolivarian Republic of Venezuela v. Helmerich & Payne reshaped the gateway to suing foreign sovereigns in U.S.
Does the FSIA's expropriation exception permit a suit to proceed based on a mere "nonfrivolous" argument that property was taken in violation of international law, or must a court determine at the threshold that the plaintiff has a legally valid claim that the taking violated international law?
Under the FSIA's expropriation exception, 28 U.S.C. § 1605(a)(3), a foreign state is not immune only where "rights in property taken in violation of international law are in issue" and certain nexus requirements are satisfied. To invoke this exception, a plaintiff must make out a legally valid claim that the property was taken in violation of international law; a bare, nonfrivolous assertion is insufficient. Courts should decide the applicability of the exception at the threshold—resolving pertinent factual and legal disputes—because foreign sovereign immunity is immunity from the burdens of litigation.
No. A nonfrivolous-argument standard is too low. To overcome FSIA immunity under the expropriation exception, the plaintiff must establish at the outset a legally valid claim that the property was taken in violation of international law. The Court reversed the D.C. Circuit and remanded for application of the proper standard.
This decision is a leading case on the FSIA's expropriation exception and the standard for overcoming foreign sovereign immunity. It clarifies that plaintiffs must do more than assert colorable or nonfrivolous claims; they must plead and substantiate a legally valid violation of international law before discovery and merits litigation proceed. For law students, the case illustrates the intersection of jurisdiction and merits, the protective function of immunity doctrines, the domestic takings rule in international law, and how comity concerns shape procedural thresholds in suits against foreign states.