A Study On Cases Involving China Under The U.S. Foreign Sovereign Immunity Act

The overseas trade and investment disputes involving the Chinese government and state-owned enterprises are particularly prominent in the United States.With the outbreak of the new crown pneumonia epidemic in2020,there has been a wave of transnational litigation in the United States demanding that China must be responsible for the spread of the epidemic.The filing of these lawsuits has once again raised concerns about the legal issue of national sovereign immunity.Moreover,the United States is the first country in the world to adopt the theory of restricted immunity in the form of statutory law,and studying the application of US Foreign Sovereign Immunity Act(1976)to China has become more theoretical and practical.This article sorts out and analyzes the cases involving China in the US US Foreign Sovereign Immunity Act(1976)from 1976 to 2020,in chronological order,in order to gain insight into specific legal issues in the application of US national immunity legislation.Through case analysis,it is found that there are three main legal application issues,including the the legal issue of qualification of exempt subjects,the legal issue of commercial activity exceptions,and the issue of service procedures.Through the study of relevant legislative provisions and judicial precedents,clarify and summarize the rules of the US courts for determining the immunity qualifications of the Chinese entities involved.The US courts are not affected by China’s absolute sovereign immunity claims when determining the qualifications of immunity subjects.Therefore,our Chinese subjects should actively provide evidence to prove that they are eligible for immunity subjects when facing such cases.Clarify the definition of "commercial activity" in the commercial activity exception.Although US legislation adopts qualitative standards to define commercial activity,However,in judicial practice,US courts still consider the identity of the actors and the starting point of the conduct when determining commercial behaviors.Regarding the determination of the "direct effect" of foreign commercial activities on the United States,although the U.S.legislation has given the U.S.courts greater discretion,based on political considerations,the U.S.courts are still cautious in determining the "direct effect" in practice.Attitude.The United States has set strict regulations in the service procedures of sovereign immunity cases,including the distinction of the objects of service and the distinction of the order of service.This found that the US courts have extremely complicated regulations on the procedures for extraterritorial service.Through the study of the three main legal application issues,suggestions are made on the issues of sovereign immunity from the perspectives of legislation and judicial practice,including the specific legislative suggestions for China’s Foreign Sovereign Immunity Law and advice for dealing with such litigation in judicial practice.