Scholarship@Cornell Law: A Digital Repository

Article Title

Oil, Gas, and Rhesus Monkeys: A New Framework for Natural Resources Under the Commercial Activity Exception

Authors

Madelaine J. Horn, Cornell Law School, J.D. 2020Follow

Keywords

Foreign Sovereign Immunities Act of 1976, FSIA

Abstract

The Foreign Sovereign Immunities Act of 1976 (FSIA) constitutes an exception for sovereign states to the normal jurisdictional rules that govern when parties are subject to suit in US courts. The commercial activity provision is a carveout within that broad exception-it deprives sovereign states of their exceptional immunity when they engage in commercial conduct. Within this framework, courts have used the natural resource rule to circumvent the commercial activity carveout and restore immunity to sovereign states. This Note argues that the rule should be abandoned in favor of a much more limited test, thereby increasing the number of sovereign states that would be subject to suit in US courts. Part I addresses the MOL case, its doctrinal foundations, and its progeny. Part II analyzes In re Complaint of Sedco, extrapolating a new test from the case for when transactions involving natural resources count as commercial and applying the test to existing case law. Part II also addresses and rejects alternative rules for situating natural resource-related cases within the commercial activity exception.

Recommended Citation

Horn, Madelaine J. (2019) "Oil, Gas, and Rhesus Monkeys: A New Framework for Natural Resources Under the Commercial Activity Exception," Cornell International Law Journal: Vol. 51: No. 4, Article 5.
Available at: https://scholarship.law.cornell.edu/cilj/vol51/iss4/5