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Key Provisions, Practical Implications, and Why Reciprocal Retaliatory Measures by Other Countries Will Not Level the Civil Litigation Playing Field


JASTA is politically and legally significant. Some of JASTA’s practical implications are foreseeable—both for U.S. plaintiffs and foreign state defendants—but a fuller picture of JASTA’s ramifications for litigants, countries, foreign relations, and anti-terrorism efforts are likely to come into focus over time.

While foreign states may adopt reciprocal retaliatory measures to expose the United States and U.S. persons to civil proceedings, such measures are not likely, as a general matter, to level the playing field for foreign plaintiffs or subject the United States and U.S. persons to civil litigation on par with what foreign defendants will face in U.S. civil litigation.

Some members of Congress, including some that voted in favor of JASTA, have indicated an interest in revisiting the law, particularly to avoid retaliatory measures by foreign states. Modifications to JASTA may be politically feasible, but the restoration of foreign sovereign immunity in international terrorism cases arising or commenced after September 11, 2001 seems much less likely, given the politics and optics surrounding JASTA. The political landscape is complicated by the fact that a new president will take office in the United States within months of JASTA’s adoption.

Foreign states and foreign persons subject to JASTA’s provisions should acquaint themselves with and monitor JASTA, pending litigation in which they may be named as defendants in a post-JASTA environment, and JASTA-related developments in the United States and abroad. Foreign states should also not assume that only Saudi Arabia will be sued under JASTA.

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