Today’s paper of the day is Precarious Employment? Varying Approaches to Foreign Sovereign Immunity in Labor Disputes, by Richard Garnett of Melbourne Law School. The paper provides a really interesting and useful overview of the cases and approaches to foreign sovereign immunity as it applies to claims brought by employees of foreign states. Well worth a read! Professor Garnett argues that while the cases are not uniform, the best approach is one that focuses on the commercial or non-commercial nature of the employee’s duties. This approach is consistent with the FSIA’s legislative history and with many of the cases. In current litigation, it seems to me that foreign sovereigns may understand that their best bet is not to argue that a particular low-level employee’s work was not commercial, but instead to argue that the employee’s claim is not “based upon” his work or upon an injury incurred in the course of his work. This may be the next line of defense in such cases.
The paper is reprinted here with permission by the International Lawyer of the American Bar Association and appears in 51 International Lawyer 25 (2018).