The Extraterritorial Application of Post-Judgment Discovery under the U.S. Foreign Sovereign Immunities Act

The United States Foreign Sovereign Immunities Act ("FSIA") contains provisions of exceptions to jurisdictional and execution immunity of a foreign state. In Republic of Argentina v. NML Capital, Ltd., the United States Supreme Court interpreted the immunity exceptions under the FSIA broadly and even applied extraterritorially. The Court in NML did not limit power of the U.S. court to order post-judgment discovery to search for the assets around the world of the judgment debtor, Argentina. The decision in NML may significantly affect later FSIA cases to enforce the judgment of a court in the U.S. against a foreign state because this case approved the broad discovery order of the U.S. court to enforce judgment execution of judgment creditors on the property of judgment debtors, in the United States or abroad. The judgment execution on the assets abroad under the FSIA expands the scope of the Act extraterritorially. To grasp the rules on execution under the FSIA, this paper reviews the FSIA's execution immunity and its exceptions, focusing on issues related to judgment execution against a foreign state. The paper analyzes the rationale of the Court in NML to find out how the judgment execution and its exception under the FSIA had been applied. Although the NML Court discussed the questions on discovery in the post-judgment discovery proceedings, it can be a good reference to see how the execution exceptions under the FSIA to judgment execution in the future will be interpreted, especially in any recognition and enforcement judgment related to the Investor-State Disputes in the U.S. court.