On May 1, 2017, the Supreme Court of the United States, in Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co., unanimously held that, in order for the “expropriation exception” to jurisdictional immunity under the Foreign Sovereign Immunities Act (“FSIA”) to apply, district courts must find that property rights are at issue, and that these property rights were in fact taken in violation of international law.
Where the defendant challenges this predicate, district courts must make this determination, even if the decision involves factual disputes intertwined with the merits of the case, as near to the outset of the case as possible.