The case of the day is Dahman v. Embassy of Qatar (D.D.C. 2019). I wrote about the case last year. El-Sayed Dahman, an accountant, worked for the Embassy of Qatar. The embassy terminated his employment, perhaps as a matter of policy due to his age, and he brought an action for age discrimination. So far, so good. There are, unfortunately, foreign governments that discriminate on the basis of age as a matter of policy when employing people in the United States, and the cases generally say that if the employee’s employment is “commercial” (factors can include the nationality of the worker, the nature of his or her duties, etc.), there is no FSIA immunity in such a case because of the commercial activity exception.
Here, the twist was that the written employment contract contained an agreement to arbitrate—in Qatar. Although Dahman had obtained a default judgment, Qatar brought a motion to vacate, arguing that the parties had agreed to arbitration and thus the court should have dismissed the case on forum non conveniens grounds. The court found the agreement to arbitrate valid and found that Dahman had failed to show, as required by the Atlantic Marine case, that “public-interest factors overwhelmingly disfavor a transfer.” I won’t delve into that reasoning here.
It is surprising that I don’t see more cases against foreign sovereigns where the sovereign requires arbitration on its home turf. In cases where there is a good argument against FSIA immunity, this should be an attractive thought for the sovereigns. I suppose that in difficult FSIA cases, it might not make sense to take the arbitration approach, because there may be a good chance that the sovereign never has to face the claim at all. In any case, I will keep my eyes open for more examples.