Court Opinion Discusses Immunity of International Development Banks under FSIA

14 JAM v. INTERNATIONAL FINANCE CORP. Opinion of the Court cerns that we identified when considering similar litiga- tion under the Alien Tort Statute. See Jesner v. Arab Bank, PLC, 584 U.S. __, __ —___ (2018); Kiobel v. Royal Dutch Petroleum Co., 569 U.S. 108, 116-117 (2018). The IFC’s concerns are inflated. To begin, the privileges and immunities accorded by the IOIA are only default rules. If the work of a given international organization would be impaired by restrictive immunity, the organiza- tion’s charter can always specify a different level of im- munity. The charters of many international organizations do just that. See, e.g., Convention on Privileges and Im- munities of the United Nations, Art. IT, §2, Feb. 18, 1946, 21 U.S. T. 1422, T. I. A. S. No. 6900 (The United Nations ... shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity’); Articles of Agreement of the Inter- national Monetary Fund, Art. IX, §8, Dec. 27, 1945, 60 Stat. 1418, T. I. A. S. No. 1501 (MF enjoys “immunity from every form of judicial process except to the extent that it expressly waives its immunity’). Notably, the IFC’s own charter does not state that the IFC is absolutely immune from suit. Nor is there good reason to think that restrictive im- munity would expose international development banks to excessive liability. As an initial matter, it is not clear that the lending activity of all development banks qualifies as commercial activity within the meaning of the FSIA. To be considered “commercial,” an activity must be “the type” of activity “by which a private party engages in” trade or commerce. Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 614 (1992); see 28 U.S.C. §1603(d). As the Government suggested at oral argument, the lending activity of at least some development banks, such as those that make conditional loans to governments, may not qualify as “commercial” under the FSIA. See Tr. of Oral Arg. 27-80. HOUSE_OVERSIGHT_028556