Case of the Day: Missouri v. China

Exterior view of the Wuhan Institute of Virology

The case of the day is Missouri v. People’s Republic of China (8th Cir. 2024). I’ve written about the case before, most recently in July 2022. The gist of the case is that Missouri seeks to hold the Chinese government, the Chinese Communist Party, the Wuhan Institute of Virology, etc. liable for harms resulting from the COVID pandemic. The District Court had earlier dismissed the action on the grounds that all claims against all defendant were barred by the FSIA.

The Eighth Circuit mostly affirmed the District Court’s decisions, but it reversed on the holding that Missouri’s claim that China had hoarded PPE was barred by the commercial exception activity. Haley Anderson has a post at the Transnational Litigation Blog that explains the holding and provides a strong critique. I agree with that post and think the holding is probably wrong. But I want to address another point near and dear to the heart of Letters Blogatory readers that I think the Eighth Circuit missed.1 The District Court had authorized alternative service by email on the Chinese Communist Party and the Wuhan Institute of Virology. That authorization was an error if the CCP and the WIV are considered to be the Chinese state or its alter ego, since alternative methods of service are not permitted under 28 U.S.C. § 1608(a). The authorization was also an error if the CCP or the WIV are instrumentalities of the Chinese state, since 28 U.S.C. § 1608(b) allows for alternative methods of service only if they are “consistent with the law of the place where service is to be made,” which here is clearly China. But the Eighth Circuit took the view that the CCP was the Chinese state, and that the WIV was an instrumentality of the Chinese state. So I see no way that the District Court could have acquired personal jurisdiction over either, since the service on both was permissible, if at all, only if the FSIA’s service rules don’t apply to the two entities. (Of course, in light of the exclusive character of the Service Convention and China’s objection under Article 10 of the Convention, the conclusion would be the same even if the CCP and the WIV were private parties, at least in my view). Any eventual judgment against the CCP and the WIV would therefore be subject to a motion to set it aside as void, in my view.

It’s counterintuitive, but sometimes it can be easier to serve a foreign state than it is to serve an instrumentality of the foreign state. That’s because, in principle, there is always a method available to serve a foreign state, namely, through the diplomatic channel, when other methods fail. In the real world, because we don’t have diplomatic relations with all states and because not all protecting power agreements provide for the transmission of documents that effect service of process, this isn’t quite right, but still, it’s a funny quirk in the statute.

Photo credit: Ureem2805 (CC BY-SA)

  1. Maybe “missed” is too strong, since I don’t know without checking that service of process in an FSIA case is the kind of subject-matter jurisdictional issue that the court has to consider sua sponte.

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