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Oral Arguments Set in Challenge to Whether a Foreign Sovereign Can Have a Claim Litigated Outside the Courts

For Immediate Release: September 29, 2017

Contact: Craig M. Sandberg, 312.263.7249, craig@muslin-sandberg.com

Chicago, IL – Etihad Airlines, P.J.S.C. ("Etihad Airlines") is owned 100% by the the Government of Abu Dhabi. “[A] foreign state is presumptively immune from the jurisdiction of United States courts”. Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993). “The Emirate of Abu Dhabi is also known as Abu Zaby. It is one of several independent Arab states forming the federation known as the United Arab Emirates (U.A.E.)…The federal government handles the U.A.E.’s foreign affairs, while the rule, or emir, of each state controls its internal affairs.” Nicol v. Gulf Fleet Supply Vessels, Inc., 743 F.2d 289, 291 n.1 (5th Cir. 1984).

The Foreign Sovereign Immunities Act of 1976, 28 U.S.C. § 1602, et seq. (“FSIA” or “the Act”) “codifie[d], as a matter of federal law, the restrictive theory of sovereign immunity and transfers primary responsibility for immunity determinations from the Executive to the Judicial Branch.” Republic of Austria v. Altmann, 541 U.S. 677, 691 (2004) (internal citations and quotes omitted). Under the FSIA, a normally immune foreign sovereign is subject to the jurisdiction of federal and state courts when specific exceptions apply. Wolf v. Federal Republic of Germany, 95 F.3d 536, 541 (7th Cir. 1996). Section 1605(a)(2) of the FSIA provides that “[a] foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case” “in which the action is based upon a commercial activity carried on in the United States by the foreign state”. 28 U.S.C. § 1605 (emphasis added). Since its formation, Etihad Airlines has served as the national airline of the U.A.E. and is, thus, involved in a commercial activity carried on in the United States.

Baylay sued Etihad Airlines in the United States District Court for the Northern District of Illinois for personal injuries originating from an incident while layover in the Chicago. Baylay's injuries came when a co-pilot for Etihad Airlines knocked on his hotel room door in the late night or early morning hours of October 13/14, 2013 and, then, intentionally struck him with a bronze-bladed ornament that was taken from the hotel's lobby or hallway.

Etihad Airlines filed its appearance and, then, moved to dismiss the action on grounds that the proper venue for Baylay's claim was before the Industrial Commission of Illinois ("the Commission") as a worker's compensation claim. The Commission is an agency of the executive branch of the government of the State of Illinois. See 820 ILCS §§ 305/13, 305/14. Baylay responded to the motion by alleging the Commission could never have jurisdiction over the claim because it is not a court. Also, Baylay alleged that the claims fell outside of the exclusivity provisions of Sections 5(a) and 11 of the Illinois Workers’ Compensation Act (“IWCA”) because the injury 1) was not accidental, 2) did not arise from his employment (i.e., scope of employment), or 3) was not compensable under the IWCA.

The district court ruled that both the FSIA and the IWCA permit Baylay's claim to be adjudicated outside the courts and before an agency of the Illinois executive branch (i.e., the Commission) and, further, that the claim did not fall outside the exclusivity provisions of Sections 5(a) and 11 of the IWCA. The district court, therefore, granted Etihad Airlines' motion to dismiss the action. Baylay appealed the district court's decision.

WHAT: Oral arguments begin in Baylay v. Etihad Airlines, P.J.S.C. (Docket Nos. 16-4113 and 17-1958).

WHO: Craig M. Sandberg will argue for Baylay, before a panel of judges in United States Court of Appeals for the Seventh Circuit.

WHEN: Wednesday, November 1, 2017 at 9:30 a.m.

WHERE: United States Court of Appeals for the Seventh Circuit, Everett McKinley Dirksen United States Courthouse, 219 South Dearborn Street, Room 2721, Chicago, Illinois

Categories: Blog

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