Friend of Letters Blogatory Ingrid Brunk has an interesting post at the Transnational Litigation Blog about whether foreign sovereigns can waive the requirement of service as prescribed under 28 U.S.C. § 1608. This is, from the get-go, an interesting question, because § 1608(a)(1) tells us that the first method of service that a plaintiff must attempt in an FSIA case is service according to any “special arrangement for service” between the parties. It could be that the difference between a “special arrangement for service” and a waiver of the protections of the statute (which means, presumably, that the plaintiff must serve the foreign sovereign in the ordinary manner, as though it were not a foreign sovereign) is just semantic. But Ingrid argues it isn’t, and I assume that she’s right that there’s a real difference between waivers and “special arrangements.”

If that’s right, then as Ingrid agrees, the most obvious answer is that of course the foreign sovereign can waive the service provisions of the FSIA, just as the foreign sovereign can waive the substantive immunity the statute provides. Note, though, that the statute (§ 1605(a)(1)) expressly provides for waiver of immunity, but it doesn’t expressly provide for waiver of the service provisions. This starts to get at Ingrid’s main point. She observes that there are some procedural rules that parties cannot waive, e.g., deadlines in ordinary civil litigation, which can only be modified with the court’s approval, or limits on the court’s subject-matter jurisdiction. She suggests that the FSIA’s service rules might be similar.

I am not sure the examples of non-waivable rules she cites really make the point, because court control of deadlines and congressional control of jurisdiction do not implicate just the interests of the litigant but rather institutional interests of the court and the state. (The situation is similar to objections under Article 10 of the Service Convention, which in my view anyway cannot be waived because Article 10 exists to protect the interests of the state, not the interests of the litigants). I don’t see that the method of serving process is like that. The FSIA’s rules seem to exist only to protect the interests of the foreign sovereign, so why should the foreign state be forbidden to waive them?

But Ingrid makes another point, which I think is stronger. She points out that under 28 U.S.C. § 1330(b), the court’s personal jurisdiction, in an FSIA case, is tied to whether “service has been made under section 1608 of this title.” She suggests that we can infer that the statute means to tie personal jurisdiction not just to any old method of service, but to service under the statute. That argument has a lot of appeal. But I am not sure it is right. Personal jurisdiction, like methods of service, seems only to implicate the interests of the litigant, so it, too, should be waivable. Another way to think about the statute is to say that the connection between the two sections means that waiver of the service rules is also waiver of the defense of lack of personal jurisdiction.