## Facts

- After the Argentine military took control of Argentina, men associated with the regime kidnapped Jose Siderman and tortured him.
- After his release, Jose Siderman and his family left Argentina; one family member, Susana Siderman de Blake, was a naturalized U.S. citizen, and the family later lived in California.
- Argentine authorities took over the Sidermans’ business interests and diverted assets for the benefit of military officials.
- The military advertised one of the Sidermans’ hotels in the United States and hosted American guests who paid using American credit cards.
- Jose Siderman sold approximately 127,000 acres of Argentine property; Argentine authorities allegedly altered records to show he had owned only 127 acres.
- Argentina initiated criminal fraud charges against Siderman based on the alleged record changes and sought assistance from a California court to serve criminal papers on him.
- While Siderman was traveling in Italy, he was arrested on the Argentine charges; Italian authorities concluded the charges were pretextual and released him.
- Jose Siderman, Lea Siderman, Carlos Siderman, and Susana Siderman de Blake sued Argentina and related defendants in federal court, asserting claims based on torture and unlawful expropriation of their property and business.
- The district court dismissed the Sidermans’ claims, relying on the act of state doctrine and concluding that the Foreign Sovereign Immunities Act (FSIA) barred jurisdiction; it also vacated a default judgment previously entered when Argentina had not appeared.

## Issues

1. Whether Argentina was immune from suit under the FSIA, or whether an FSIA exception applied (including waiver) to permit jurisdiction over the Sidermans’ torture and expropriation claims.
2. Whether the allegation that official torture violates a jus cogens norm, by itself, removes a foreign state’s immunity under the FSIA.
3. Whether the act of state doctrine required dismissal of claims alleging that Argentine officials expropriated the Sidermans’ property and business in Argentina.
4. Whether the district court properly vacated the default judgment and dismissed for lack of jurisdiction based on sovereign immunity.

## Decision

- The Ninth Circuit recognized that freedom from official torture is a jus cogens norm of international law.
- The court held that a claimed violation of a jus cogens norm does not, standing alone, create an extra-statutory exception to immunity under the FSIA; jurisdiction must rest on the FSIA’s enumerated exceptions.
- The court concluded that the district court erred in treating Argentina as immune on this record because the Sidermans had shown a basis for jurisdiction under the FSIA, including conduct supporting waiver of immunity.
- The court held the act of state doctrine did not justify dismissal of the expropriation-related claims on the record presented.
- The Ninth Circuit reversed the district court’s dismissal and vacatur of the default judgment and remanded for further proceedings.

## Legal Principles

- Official torture is prohibited by a peremptory norm (jus cogens) of international law.
- The FSIA supplies the exclusive rules for foreign-state immunity in U.S. courts; courts may not add a free-standing “jus cogens exception” to the statute.
- FSIA jurisdiction requires a statutory exception, such as waiver; a foreign state’s litigation-related conduct and use of U.S. judicial processes may support a finding of implied waiver in appropriate circumstances.
- The act of state doctrine is a prudential doctrine that can limit adjudication of certain sovereign acts within a foreign state’s territory, but it is not a blanket bar where the record does not justify deference.
- A default judgment against a foreign state cannot stand without FSIA jurisdiction, but a court may not vacate a default solely on immunity grounds if an FSIA exception supports jurisdiction.

## Conclusion

The Ninth Circuit treated the prohibition of official torture as a jus cogens norm but held that FSIA immunity is determined by statutory exceptions, not by jus cogens status alone; because the record supported FSIA jurisdiction (including waiver) and did not warrant act of state dismissal, the court reversed and remanded for further proceedings.


Siderman De Blake v. Republic of Argentina, 965 F.2d 699 (1992)