Clifford Chance

U.S. Supreme Court Raises the Bar for FSIA Expropriation Claims

8 May 2017

On May 1, 2017, in a unanimous eight-Justice opinion, the Supreme Court decided Bolivarian Republic of Venezuela v. Helmerich & Payne International Drilling Co. et al. (No. 15–423), raising the jurisdictional bar that a plaintiff must meet for a case to fall within the scope of the expropriation exception to the Foreign Sovereign Immunities Act.  The Court held that a U.S. court can assert jurisdiction on the basis of the expropriation exception only when a plaintiff alleges facts that "do show (and not just arguably show) a taking of property in violation of international law."  The Court explicitly rejected the "exceptionally low bar" set by the U.S. Court of Appeals for the D.C. Circuit, which had held that an expropriation claim could proceed provided that it is not "wholly insubstantial or frivolous". This decision resolves a circuit split and raises the bar for parties seeking to sue a sovereign for unlawful expropriation in a U.S. court.

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