Sovereign Immunity. George Janini and other former professors and employees of Ku-wait University (the plaintiffs) were terminated from their positions following Iraq's invasion of Kuwait in August 1990. Following the invasion, the government of Kuwait

Question

issued a decree stat-ing, among other things, that "contracts concluded between the Government and those non-Kuwaiti workers who worked for it . . . shall be considered automatically abrogated because of the impossibility of enforcement due to the Iraqi invasion." The plaintiffs sued Kuwait University in a U.S. court, alleging that their termination breached their employment contracts, which re-quired nine months' notice before termination. The plaintiffs sought back pay and other benefits to which they were entitled under their contracts. The university claimed that, as a government-operated institution, it was immune from the jurisdiction of U.S. courts under the doctrine of sovereign immunity. What exceptions are made to this doctrine? Will an exception apply to the university's activities with respect to the plaintiffs? Discuss fully.

Answer 1

Sovereign immunity
Under the Foreign Sovereign Immunities Act (FSIA), a U.S. court cannot exercise jurisdiction over a dispute unless the plaintiff can prove, among other things, that the defendant's actions constituted a commercial activity. In this case, the court held that terminating the professors' positions constituted a commercial activity. The court concluded that "there is nothing peculiarly sovereign about unilaterally terminating an employment contract. Private parties often repudiate contracts in everyday commerce and may be held liable therefore. That the termination here may have been accomplished by a formal decree of abrogation does not affect its commercial nature."