Restricting RICO Under FSIA

Authors

John D. Corrigan

Document Type

Note

Abstract

(Excerpt)

This Note explores two competing interpretations: (1) that so long as the criminal act underlying the civil RICO suit falls within a FSIA exception, the sovereign may not raise immunity, and (2) that absent a grant of criminal jurisdiction, a foreign sovereign is not amenable to suit in a civil RICO claim. This Note asserts that the courts should find foreign sovereigns immune from civil RICO suits.

Exploring the two FSIA interpretations requires an understanding of both statutes. To better understand FSIA’s framework, Part I discusses the underlying theories of immunity that gave rise to its development, as well as the congressional intent behind it. To illustrate civil RICO’s quasi-criminal nature, Part I also sketches the development of RICO. Part II explores the two competing interpretations of RICO in light of FSIA by detailing two circuit court cases with substantially similar facts yet diverging outcomes: Southway v. Central Bank of Nigeria and Keller v. Central Bank of Nigeria. Part II also briefly examines the dispositions of other courts on civil RICO claims brought under FSIA. Finally, Part III analyzes the diverging arguments in light of the statutory text, case law, international law, and policy considerations. Part III argues that granting immunity in civil RICO claims better reconciles FSIA’s text and purpose, and better aligns U.S. practice with international law. Part III concludes that, in light of policy concerns, courts should refrain from exercising jurisdiction over foreign sovereigns in civil RICO claims.