28 U.S.C. § 1604 — Immunity of a foreign state from jurisdic-

Page 422 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 1603 of this title, amending sections 1332, 1391, and 1441 of this title, and enacting provisions set out as notes under this section and section 1 of this title] shall take effect ninety days after the date of its enactment [Oct. 21, 1976].’’ SHORT TITLE For short title of Pub. L. 94–583 as the ‘‘Foreign Sov- ereign Immunities Act of 1976’’, see section 1 of Pub. L. 94–583, set out as a Short Title of 1976 Amendments note under section 1 of this title. SEPARABILITY Pub. L. 94–583, § 7, Oct. 21, 1976, 90 Stat. 2898, provided that: ‘‘If any provision of this Act [enacting this chap- ter and section 1330 of this title, amending sections 1332, 1391, and 1441 of this title, and enacting provisions set out as notes under this section and section 1 of this title] or the application thereof to any foreign state is held invalid, the invalidity does not affect other provi- sions or applications of the Act which can be given ef- fect without the invalid provision or application, and to this end the provisions of this Act are severable.’’ § 1603. Definitions For purposes of this chapter— (a) A ‘‘foreign state’’, except as used in sec- tion 1608 of this title, includes a political sub- division of a foreign state or an agency or in- strumentality of a foreign state as defined in subsection (b). (b) An ‘‘agency or instrumentality of a for- eign state’’ means any entity— (1) which is a separate legal person, cor- porate or otherwise, and (2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political sub- division thereof, and (3) which is neither a citizen of a State of the United States as defined in section 1332 (c) and (e) of this title, nor created under the laws of any third country. (c) The ‘‘United States’’ includes all terri- tory and waters, continental or insular, sub- ject to the jurisdiction of the United States. (d) A ‘‘commercial activity’’ means either a regular course of commercial conduct or a par- ticular commercial transaction or act. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose. (e) A ‘‘commercial activity carried on in the United States by a foreign state’’ means com- mercial activity carried on by such state and having substantial contact with the United States. (Added Pub. L. 94–583, § 4(a), Oct. 21, 1976, 90 Stat. 2892; amended Pub. L. 109–2, § 4(b)(2), Feb. 18, 2005, 119 Stat. 12.) Editorial Notes AMENDMENTS 2005—Subsec. (b)(3). Pub. L. 109–2 substituted ‘‘(e)’’ for ‘‘(d)’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2005 AMENDMENT Amendment by Pub. L. 109–2 applicable to any civil action commenced on or after Feb. 18, 2005, see section 9 of Pub. L. 109–2, set out as a note under section 1332 of this title. EFFECTIVE DATE Section effective 90 days after Oct. 21, 1976, see sec- tion 8 of Pub. L. 94–583, set out as a note under section 1602 of this title. § 1604. Immunity of a foreign state from jurisdic- tion Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States ex- cept as provided in sections 1605 to 1607 of this chapter. (Added Pub. L. 94–583, § 4(a), Oct. 21, 1976, 90 Stat. 2892.) Editorial Notes REFERENCES IN TEXT The time of enactment of this Act, referred to in text, probably means the time of enactment of Pub. L. 94–583, which was approved Oct. 21, 1976. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 90 days after Oct. 21, 1976, see sec- tion 8 of Pub. L. 94–583, set out as a note under section 1602 of this title. § 1605. General exceptions to the jurisdictional immunity of a foreign state (a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case— (1) in which the foreign state has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of the waiver which the foreign state may purport to effect except in accordance with the terms of the waiver; (2) in which the action is based upon a com- mercial activity carried on in the United States by the foreign state; or upon an act per- formed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct ef- fect in the United States; (3) in which rights in property taken in vio- lation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a commercial activity car- ried on in the United States by the foreign state; or that property or any property ex- changed for such property is owned or oper- ated by an agency or instrumentality of the foreign state and that agency or instrumen- tality is engaged in a commercial activity in the United States; (4) in which rights in property in the United States acquired by succession or gift or rights in immovable property situated in the United States are in issue;