Home » Articles » The “Common Law Regime” of Foreign Sovereign Immunity: The Actual Possession Rule in Admiralty

The “Common Law Regime” of Foreign Sovereign Immunity: The Actual Possession Rule in Admiralty

PDF · David J. Bederman · Jun-25-2012 · 44 VAND. J. TRANSNAT'L L. 859 (2011)

It has been a long-standing rule in admiralty that in order for a foreign sovereign to assert immunity in U.S. courts, the res that is the object of the maritime claim must be in the actual possession of the foreign state at the time the case is brought. Inasmuch as Samantar recognized the existence of a “common-law regime” that pre-existed the Foreign Sovereign Immunities Act (FSIA), this article examines whether the actual possession rule remains in force today. The FSIA codified the actual possession rule in its provisions for the handling of admiralty claims against foreign sovereigns, but this has been hotly disputed. Resolution of this question has broad implications, including the measure of deference that should be given to Executive Branch positions and the extent to which foreign sovereign interests should be accommodated in all forms of collective proceedings.




Leave a Reply

ExpressO Top 10 Law Review

ANNOUNCEMENTS

The Vanderbilt Journal of Transnational Law mourns the death of its founder, Professor Harold G. Maier.

We are pleased to announce the 2014-2015 Board of Editors and 2014-2015 Editorial Staff Members.

Please join us in congratulating the Vanderbilt Journal of Transnational Law 2013-2014 Annual Award Winners.

Coming up:

The Vanderbilt Journal of Transnational Law invites you to its 2015 Symposium, This is Not a Drill: Confronting Legal Issues in the Wake of International Disasters.

Recent and dire international disasters, both environmental and humanitarian, have left legacies not only of destruction and destitution, but also of an uncertain legal landscape. The Symposium will address current and pressing international-disaster-response topics. These will include environmental effects, disaster assistance, humanitarian assistance, and criminal processes and sanctions in the wake of various types of international disasters. Symposium participants will include leading scholars from across the country.

The 2015 Symposium will take place on Friday, February 13, 2015 at Vanderbilt Law School, 131 21st Avenue South, Nashville, TN 37203. A detailed schedule will be available soon.

For information on the 2015 Symposium, as well as past symposia hosted by the Journal, please visit the Symposium page.

Explore Other Vanderbilt Law Resources