to acquire goods.”
foreign state’s exercise of the power of its police has long
been understood for purposes of the restrictive theory as
peculiarly sovereign in nature,” because “[e]xercise of the
powers of police and penal officers is not the sort of
action by which private parties can engage in commerce.”16
Nelson, 507 U.S. at 361-62.
Id. at 614-15.
In the same way, “a
With this distinction in mind, “our first task is to identify what particular conduct in this case is relevant.”
Texas Trading & Milling Corp. v. Fed. Republic of Nigeria,
647 F.2d 300, 308 (2d Cir. 1981); see also Nelson, 507 U.S.
at 356 (“We begin our analysis by identifying the particular
conduct on which the [plaintiffs’] action is ‘based’ for
The House Report provides additional examples: [A] contract by a foreign government . . . to construct a government building . . . [or] to make repairs on an embassy building . . . should be considered to be commercial contracts, even if their ultimate object is to further a public function. By contrast, a foreign state’s mere participation in a foreign assistance program administered by the Agency for International Development (AID) is an activity whose essential nature is public or governmental, and it would not itself constitute a commercial activity.
House Report at 16. 53
United States Court of Appeals for the Second Circuit: In Re Terrorist Attacks