網頁圖片
PDF
ePub 版

Opinion of the Court

stated that the restrictive theory of foreign sovereign immunity would not bar a suit based upon a foreign state's participation in the marketplace in the manner of a private citizen or corporation. 425 U. S., at 698-705. A foreign state engaging in “commercial” activities “do[es] not exercise powers peculiar to sovereigns”; rather, it "exercise[s] only those powers that can also be exercised by private citizens.” Id., at 704. The dissenters did not disagree with this general description. See id., at 725. Given that the FSIA was enacted less than six months after our decision in Alfred Dunhill was announced, we think the plurality's contemporaneous description of the then-prevailing restrictive theory of sovereign immunity is of significant assistance in construing the scope of the Act.

In accord with that description, we conclude that when a foreign government acts, not as regulator of a market, but in the manner of a private player within it, the foreign sovereign's actions are “commercial” within the meaning of the FSIA. Moreover, because the Act provides that the commercial character of an act is to be determined by reference to its “nature" rather than its “purpose,” 28 U. S. C. $ 1603(d), the question is not whether the foreign government is acting with a profit motive or instead with the aim of fulfilling uniquely sovereign objectives. Rather, 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,” Black's Law Dictionary 270 (6th ed. 1990). See, e. g., Rush-Presbyterian-St. Luke's Medical Center v. Hellenic Republic, 877 F. 2d 574, 578 (CA7), cert. denied, 493 U. S. 937 (1989). Thus, a foreign government's issuance of regulations limiting foreign currency exchange is a sovereign activity, because such authoritative control of commerce cannot be exercised by a private party; whereas a contract to buy army boots or even bullets is a “commercial” activity, because private companies can similarly use sales contracts

Opinion of the Court

to acquire goods, see, e.g., Stato di Rumania v. Trutta, [1926] Foro It. I 584, 585-586, 589 (Corte di Cass. del Regno, Italy), translated and reprinted in part in 26 Am. J. Int'l L. 626–629 (Supp. 1932).

The commercial character of the Bonods is confirmed by the fact that they are in almost all respects garden-variety debt instruments: They may be held by private parties; they are negotiable and may be traded on the international market (except in Argentina); and they promise a future stream of cash income. We recognize that, prior to the enactment of the FSIA, there was authority suggesting that the issuance of public debt instruments did not constitute a commercial activity. Victory Transport, 336 F. 2d, at 360 (dicta). There is, however, nothing distinctive about the state's assumption of debt (other than perhaps its purpose) that would cause it always to be classified as jure imperii, and in this regard it is significant that Victory Transport expressed confusion as to whether the “nature” or the “purpose” of a transaction was controlling in determining commerciality, id., at 359-360. Because the FSIA has now clearly established that the “nature” governs, we perceive no basis for concluding that the issuance of debt should be treated as categorically different from other activities of foreign states.

Argentina contends that, although the FSIA bars consideration of “purpose," a court must nonetheless fully consider the context of a transaction in order to determine whether it is "commercial.” Accordingly, Argentina claims that the Court of Appeals erred by defining the relevant conduct in what Argentina considers an overly generalized, acontextual manner and by essentially adopting a per se rule that all “issuance of debt instruments” is “commercial.” See 941 F. 2d, at 151 (“'[I]t is self-evident that issuing public debt is a commercial activity within the meaning of [the FSIA]'”), quoting Shapiro v. Republic of Bolivia, 930 F. 2d 1013, 1018 (CA2 1991). We have no occasion to consider such a per se rule, because it seems to us that even in full context, there

Opinion of the Court

is nothing about the issuance of these Bonods (except perhaps its purpose) that is not analogous to a private commercial transaction.

Argentina points to the fact that the transactions in which the Bonods were issued did not have the ordinary commercial consequence of raising capital or financing acquisitions. Assuming for the sake of argument that this is not an example of judging the commerciality of a transaction by its purpose, the ready answer is that private parties regularly issue bonds, not just to raise capital or to finance purchases, but also to refinance debt. That is what Argentina did here: By virtue of the earlier FEIC contracts, Argentina was already obligated to supply the United States dollars needed to retire the FEIC-insured debts; the Bonods simply allowed Argentina to restructure its existing obligations. Argentina further asserts (without proof or even elaboration) that it “received consideration [for the Bonods] in no way commensurate with (their) value,” Brief for Petitioners 22. Assuming that to be true, it makes no difference. Engaging in a commercial act does not require the receipt of fair value, or even compliance with the common-law requirements of consideration.

Argentina argues that the Bonods differ from ordinary debt instruments in that they “were created by the Argentine Government to fulfill its obligations under a foreign exchange program designed to address a domestic credit crisis, and as a component of a program designed to control that nation's critical shortage of foreign exchange.Id., at 23– 24. In this regard, Argentina relies heavily on De Sanchez v. Banco Central de Nicaragua, 770 F. 2d 1385 (1985), in which the Fifth Circuit took the view that “[o]ften, the essence of an act is defined by its purpose"; that unless “we can inquire into the purposes of such acts, we cannot determine their nature”; and that, in light of its purpose to control its reserves of foreign currency, Nicaragua's refusal to honor a check it had issued to cover a private bank debt was a

Opinion of the Court

sovereign act entitled to immunity. Id., at 1393. Indeed, Argentina asserts that the line between “nature” and “purpose” rests upon a “formalistic distinction [that] simply is neither useful nor warranted.” Reply Brief for Petitioners 8. We think this line of argument is squarely foreclosed by the language of the FSIA. However difficult it may be in some cases to separate “purpose” (i. e., the reason why the foreign state engages in the activity) from “nature” (i. e., the outward form of the conduct that the foreign state performs or agrees to perform), see De Sanchez, supra, at 1393, the statute unmistakably commands that to be done, 28 U. S. C. § 1603d). We agree with the Court of Appeals, see 941 F. 2d, at 151, that it is irrelevant why Argentina participated in the bond market in the manner of a private actor; it matters only that it did so. We conclude that Argentina's issuance of the Bonods was a "commercial activity" under the FSIA.

B The remaining question is whether Argentina's unilateral rescheduling of the Bonods had a "direct effect” in the United States, 28 U. S. C. $ 1605(a)(2). In addressing this issue, the Court of Appeals rejected the suggestion in the legislative history of the FSIA that an effect is not "direct" unless it is both “substantial” and “foreseeable.” 941 F. 2d, at 152; contra, America West Airlines, Inc. v. GPA Group, Ltd., 877 F. 2d 793, 798–800 (CA9 1989); Zernicek v. Brown & Root, Inc., 826 F. 2d 415, 417–419 (CA5 1987), cert. denied, 484 U. S. 1043 (1988); Maritime Int'l Nominees Establishment v. Republic of Guinea, 224 U. S. App. D. C. 119, 135– 136, 693 F. 2d 1094, 1110-1111 (1982), cert. denied, 464 U. S. 815 (1983); Ohntrup v. Firearms Center Inc., 516 F. Supp. 1281, 1286 (ED Pa. 1981), aff'd, 760 F. 2d 259 (CA3 1985). That suggestion is found in the House Report, which states that conduct covered by the third clause of $ 1605(a)(2) would be subject to the jurisdiction of American courts “consistent with principles set forth in section 18, Restatement of the

Opinion of the Court

Law, Second, Foreign Relations Law of the United States (1965).” H. R. Rep. No. 94-1487, p. 19 (1976). Section 18 states that American laws are not given extraterritorial application except with respect to conduct that has, as a “direct and foreseeable result,” a “substantial” effect within the United States. Since this obviously deals with jurisdiction to legislate rather than jurisdiction to adjudicate, this passage of the House Report has been charitably described as "a bit of a non sequitur,Texas Trading & Milling Corp. v. Federal Republic of Nigeria, 647 F. 2d 300, 311 (CA2 1981), cert. denied, 454 U. S. 1148 (1982). Of course the generally applicable principle de minimis non curat lex ensures that jurisdiction may not be predicated on purely trivial effects in the United States. But we reject the suggestion that § 1605(a)(2) contains any unexpressed requirement of “substantiality” or “foreseeability.” As the Court of Appeals recognized, an effect is “direct” if it follows “as an immediate consequence of the defendant's ... activity.” 941 F. 2d, at 152.

The Court of Appeals concluded that the rescheduling of the maturity dates obviously had a “direct effect” on respondents. It further concluded that that effect was sufficiently “in the United States" for purposes of the FSIA, in part because “Congress would have wanted an American court to entertain this action” in order to preserve New York City's status as "a preeminent commercial center.” Id., at 153. The question, however, is not what Congress “would have wanted” but what Congress enacted in the FSIA. Although we are happy to endorse the Second Circuit's recognition of “New York's status as a world financial leader,” the effect of Argentina's rescheduling in diminishing that status (assuming it is not too speculative to be considered an effect at all) is too remote and attenuated to satisfy the “direct effect” requirement of the FSIA. Ibid.

We nonetheless have little difficulty concluding that Argentina's unilateral rescheduling of the maturity dates on the

« 上一頁繼續 »