Foreign Sovereign Immunity and COVID-19 Lawsuits Against China

Foreign Sovereign Immunity and COVID-19 Lawsuits Against China

Legal Sidebari

Foreign Sovereign Immunity and COVID-19
Lawsuits Against China
May 15, 2020
Putative classes of plaintiffs have launched at least five class action lawsuits against the government of
the People’s Republic of China (PRC or China) for losses in the United States associated with the
COVID-19 pandemic. Two states—Missouri and Mississippi—have also lodged claims in federal court
against China and Chinese entities for COVID-19 associated losses in those states. The lawsuits
essentially allege that the PRC government’s early failure to accurately inform the World Health
Organization and the world community about the contagiousness and scope of outbreak of the disease in
China, along with other actions to conceal vital information, prevented containment of the coronavirus
and directly led to its reaching global pandemic proportions. Each of these lawsuits faces a common
initial hurdle: jurisdiction under the Foreign Sovereign Immunities Act (FSIA). This Legal Sidebar
analyzes two possible exceptions under the FSIA that these lawsuits have asserted as a jurisdictional basis
and describes some legislative efforts to overcome foreign sovereign immunity. Because the complaints
are similar but the Missouri complaint seems to be the most detailed in its foreign sovereign immunity
claims, this Legal Sidebar focuses on the lawsuit by the State of Missouri.
Foreign Sovereign Immunity
As is the case in most countries and in accordance with international law, foreign sovereign governments
are generally immune from lawsuits in the United States. As the Supreme Court explained, Congress
enacted the FSIA in 1976 in part to relieve the executive branch of the burden and diplomatic pressure of
providing official statements known as “suggestions of immunity” on whether foreign sovereign
immunity barred U.S. courts from exercising jurisdiction over a foreign government in a particular suit.
The FSIA provides a comprehensive set of standards to guide courts with respect to foreign sovereign
immunity. The Supreme Court has held that the sole basis by which U.S. courts (federal and state) may
obtain jurisdiction over a foreign state, including its agencies and instrumentalities, is through an
exception under the FSIA. When one of the exceptions applies, the foreign state “shall be liable in the
same manner and to the same extent as a private individual under like circumstances,” except that
punitive damages are available only against an agency or instrumentality of a foreign state.
The essence of the allegations against China, as set forth in Missouri’s complaint, is that
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[d]uring the critical weeks of the initial outbreak, Chinese authorities deceived the public,
suppressed crucial information, arrested whistleblowers, denied human-to-human transmission in
the face of mounting evidence, destroyed critical medical research, permitted millions of people to
be exposed to the virus, and even hoarded personal protective equipment—thus causing a global
pandemic that was unnecessary and preventable.
Missouri asserts the court has jurisdiction over its claim for damages based on two exceptions to the
FSIA: the commercial activity exception or, alternatively, the territorial tort exception. While courts have
yet to rule on whether the exceptions are available in this case, many observers doubt that these
exceptions will prove viable.
The Commercial Activity Exception
The commercial activity exception is the most commonly asserted exception under the FSIA. It removes
foreign sovereign immunity from suit and provides jurisdiction in any case
in which the action is based upon a commercial activity carried on in the United States by the foreign
state; or upon an act performed in the United States in connection with a commercial activity of the
foreign state elsewhere; or upon an act outside the territory of the United States in connection with
a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United
States.
Whether an activity is commercial depends on its nature rather than its purpose. The Supreme Court has
explained that “the issue is whether the particular actions that the foreign state performs (whatever the
motive behind them) are the type of actions by which a private party engages in ‘trade and traffic or
commerce.’” Consequently, activities considered uniquely sovereign functions, such as regulating foreign
currency exchanges, are not commercial in nature.
Availability of the exception relies on the answers to three questions:
1. Does the activity of the state or government in question qualify as a “commercial activity”?
2. Is the plaintiff’s specific claim “based upon” that activity (or upon an act in connection with that
activity)?
3. Does the activity in question have a sufficient jurisdictional nexus to the United States?
The State of Missouri argues that Chinese government entities and the Chinese Communist Party (which
Missouri alleges is not a foreign state and thus not entitled to immunity, a position some observers
dispute) engages in the following commercial activity:
• operation of the healthcare system in Wuhan and throughout China;
• commercial research on viruses by the Wuhan Institute and Chinese Academy of Sciences;
• the operation of traditional and social media platforms for commercial gain; and
• production, purchasing, and import and export of medical equipment, such as personal protective
equipment (“PPE”), used in COVID-19 efforts.
The actions at the heart of the complaint, however, arguably are not based directly on any of these
activities. The Supreme Court has held that “an action is ‘based upon’ the ‘particular conduct’ that
constitutes the ‘gravamen’ of the suit.” Here, the lawsuit appears to be based primarily upon Chinese
authorities’ alleged concealment of information rather than on the alleged commercial activity.
The FSIA requires the commercial activity to have a “direct effect” in the United States. The Supreme
Court has explained that, in the case of commercial activity by a foreign state outside the United States,
the required “direct effect” in the United States must follow “as an immediate consequence” of the

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defendant’s activity. Some argue that the injuries suffered in Missouri and elsewhere are too attenuated
from the asserted activities to permit jurisdiction under the commercial exception activity to the FSIA.
The Territorial Tort Exception
The tort exception to the FSIA removes sovereign immunity from suit for non-commercial activities
in which money damages are sought against a foreign state for personal injury or death, or damage
to or loss of property, occurring in the United States and caused by the tortious act or omission of
that foreign state or of any official or employee of that foreign state while acting within the scope
of his office or employment.
There are several important caveats to the tort exception. First, any claim based on the performance or
failure to perform a discretionary function does not fall within the tort exception and is still protected by
sovereign immunity. The FSIA does not define discretionary function, but the Supreme Court has
concluded that the analogous exclusion under the Federal Tort Claims Act for discretionary functions
covers administrative decisions grounded in social, economic, and political policy. Second, the FSIA
provides that “any claim arising out of malicious prosecution, abuse of process, libel, slander,
misrepresentation, deceit, or interference with contract rights” does not fall within the tort exception.
Finally, most courts have held that the entire tort, not just the injury, must occur within the United States
in order for this exception to apply.
These limitations may preclude use of the tort exception to sue China for the activities alleged. The
Chinese government’s reporting or failure to report health data arguably is a discretionary governmental
function based on policy, as perhaps is its alleged ordering of destruction of viral samples. Actions
involving misrepresentation and deceit, possibly including denying evidence of person-to-person
transmission of the virus, may likewise be excluded from the exception and remain protected by
sovereign immunity. And all of these actions allegedly occurred in China, suggesting that the claims may
not satisfy the “entire tort” rule.
Legislative Proposals
Given the strictures of the FSIA and the limited scope of its exceptions, the COVID-19 lawsuits against
China face many potential barriers. Members of the 116th Congress have introduced several bills that
reduce the FSIA’s obstacles.
The Stop China-Originated Viral Infectious Diseases Act of 2020 (H.R. 6444) would add a new exception
to the FSIA for cases in which a “foreign state is found, whether intentionally or unintentionally, to have
discharged a biological weapon, as defined in section 2280(d)(3) of title 18, United States Code, in the
United States or such discharge results in the bodily injury of a United States citizen.” A similar bill, S.
3592, would exempt from immunity foreign states that discharge, intentionally or not, a “biological
agent” (as defined in Title 18, Section 178, of the United States Code). This bill would also create a cause
of action by incorporating Title 18, Section 2333, of the U.S. Code the civil cause of action for
international terrorism, which would entitle successful plaintiffs (who are U.S. nationals) to treble
damages. Neither bill defines discharge.
Another bill, S. 3588, would exempt from immunity foreign states that commit “any reckless action or
omission including a conscious disregard of the need to report information promptly or deliberately
hiding relevant information … that caused or substantially aggravated the COVID–19 global pandemic in
the United States, regardless of where the action or omission occurred.” The bill would provide a cause of
action in such cases that would permit plaintiffs to obtain treble damages. Judges in such an action would
be permitted to issue pre-judgment injunctions related to transfer or disposal of assets. The bill would also
amend Title 28, Section 1610, of the U.S. Code to remove immunity from any defendant-owned property

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in the United States, permitting its seizure to pay judgments. The Attorney General, however, would be
permitted to intervene in such an action to seek a renewable 180-day stay if the Secretary of State certifies
that the United States is engaged in good faith discussions with the defendant foreign state to resolve
relevant claims. In the event the United States reached a claims settlement agreement with the foreign
state, the Attorney General could seek dismissal of the lawsuit with prejudice, regardless of whether
plaintiffs agreed to the settlement.
The Holding the Chinese Communist Party Accountable for Infecting Americans Act of 2020 (H.R. 6519)
would also create a new exception to the FSIA for lawsuits seeking “money damages … against a foreign
state for physical injury or death, or injury to property or economic interests, occurring in the United
States and caused by—(1) the spread of COVID–19; and (2) a tortious act or acts, including acts intended
to deliberately conceal or distort the existence or nature of COVID–19. …” This bill would also permit
the Attorney General to seek successive stays if the United States is engaged in good faith settlement
discussions with the defendant, which, if successful, could result in the dismissal of the lawsuit.
H.R. 6524, the Compensation for the Victims of State Misrepresentations to the World Health
Organization Act of 2020, would amend the noncommercial tort exception to the FSIA by specifically
including claims for “personal injury or death, or damage to or loss of property, occurring in the United
States as a result of a willful or grossly negligent misrepresentation of information to the World Health
Organization of the nature, seriousness, or communicability of an infectious disease.” The bill would not
expressly remove the exclusions for discretionary actions or misrepresentations nor expressly address the
“entire tort” rule.
While those suffering from physical or economic injuries due to the COVID-19 pandemic might support
these proposals, some legal analysts have expressed concern that efforts to abrogate PRC state immunity
might have unintended consequences. There are qualms that China (or any other country sued under a
new exception to sovereign immunity) could retaliate by making the United States subject to suit in a
foreign country or through some other means, which could result in further economic hardship and place
U.S. assets abroad at risk. Some have noted that problems could be compounded if plaintiffs win sizable
judgments and seek to satisfy their judgments by seizing foreign state assets. Ultimately, some argue,
there may be better ways to hold China accountable for any role it played in exacerbating the pandemic.

Author Information

Jennifer K. Elsea

Legislative Attorney

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