Yesterday, the Supreme Court issued its decision in Turkiye Halk Bankasi A.S., aka Halkbank v. United States.[1] This groundbreaking case represents the first known attempt by the United States (or likely any state in modern history) to indict and criminally-prosecute the agency or instrumentality of a foreign state. The Supreme Court held that the Foreign Sovereign Immunities Act (“FSIA”) does not apply to, or provide immunity from, criminal prosecutions of foreign states and their agencies and instrumentalities. Noting Samantar’s[2] conclusion that immunity not addressed by the FSIA is controlled by the common law, the Court remanded to the Second Circuit to consider how that body of law addresses state immunity from criminal prosecutions. Certainly, in the short term, this case will generate much interest around criminal prosecutions of foreign states—potentially by domestic state courts, and perhaps certain organizations with immunities running parallel with those granted under the FSIA,[3] topics we will analyze further in the coming weeks.

The case involves the United States’ prosecution of Halkbank, a Turkish bank that is indirectly owned by the Republic of Turkey. The United States indicted Halbank, alleging that it engaged in “a multi-year conspiracy to evade economic sanctions imposed by the United States on Iran.”[4] The United States further alleged that Halkbank lied to the U.S. Treasury Department in order to cover up its conduct.

Halkbank moved to dismiss the indictment, arguing that it was immune from prosecution as an agency or instrumentality of the Republic of Turkey, a foreign sovereign under the FSIA.  A New York federal district court denied Halbank’s motion, based in part on its view that the FSIA does not grant immunity from criminal proceedings. The Second Circuit assumed for purposes of Halkbank’s appeal that the FSIA does, in fact, apply in criminal proceedings, but held that Halbank’s alleged misconduct fell into the FSIA’s “commercial activity” exception to jurisdictional immunity.  Halbank then sought Supreme Court review.[5]

Writing for the 7-2 majority, Justice Brett Kavanaugh first rejected Halkbank’s argument that the district court lacked subject matter jurisdiction under 28 U.S.C. § 3231, which according to its plain language provides federal district courts with jurisdiction over all criminal proceedings involving violations of federal law. Halkbank referred to the lack of any known prosecutions of foreign states and with that backdrop argued that Section 3231 does not specifically refer to suits against foreign states and their agencies or instrumentalities, and when it was passed, prosecution of foreign states was never contemplated.  Thus, those foreign entities are not included in Section 3231’s scope. Looking to the words Congress chose, the majority quickly rejected that argument, holding that Section 3231 applies to “all” federal criminal proceedings, regardless of who the defendant is. 

Further, the majority rejected Halkbank’s argument regarding the statutory predecessor of Section 3231, the Judiciary Act of 1789, read with the oft-cited 1812 Supreme Court decision, Schooner Exchange v. McFaddon,[6] holding that “Schooner Exchange did not address statutory subject matter jurisdiction,” but applied “a rule of substantive lawgoverning the exercise of the jurisdiction of the courts” that did not act as “an exception to a general statutory grant of subject matter jurisdiction.”[7]

The Court then turned to Halkbank’s FSIA arguments. The majority noted that the Supreme Court has frequently held that the FSIA applies in civil actions as part of the “carefully calibrated scheme,” covering only civil actions, and had never applied the FSIA to a criminal case. Examining the statutory text and reading it in context, the majority noted that the FSIA specifically refers to the federal courts’ subject matter jurisdiction over “any nonjury civil action against a foreign state.”[8] The FSIA’s sole venue provision similarly refers to venue in a “civil action.” The FSIA’s service provisions deal with service of a “summons and complaint,” as well as answers and responsive pleadings and default judgments—all of which apply only in civil cases—while other provisions address civil litigation features like counterclaims and punitive damages.[9] The majority further observed that the FSIA referred to “litigants,” rather than prosecutors, and to immunity “from suit,” rather than criminal investigations and proceedings. By contrast, the majority noted, the FSIA does not contain any references to criminal proceedings.

The majority further noted that the FSIA appears in Title 28 of the United States Code, which deals largely with civil procedure, and not in Title 18, which deals with crimes and criminal procedure. The majority found additional support for its conclusion in a prior case in which the Court held that the FSIA does not apply to suits against individual officials, reinforcing the conclusion that the FSIA does not extend to certain “discrete context[s],” such as criminal proceedings.[10]

Halkbank pointed to a provision of the FSIA, Section 1604, which states that “[s]ubject to existing international agreements,” a “foreign state shall be immune from the jurisdiction of the courts of the United States and of the States” unless an exception to immunity applies.[11]  The majority held that this provision could not be read in isolation, but rather in the context of the entire statutory framework. Reading Section 1604 together with 28 U.S.C. § 1330, which provides district courts with jurisdiction over “any nonjury civil action against a foreign state,” the majority held that “the natural inference is that § 1604 operates exclusively in civil cases.”[12] 

Halkbank acknowledged that the FSIA’s jurisdictional immunities only apply in civil cases.  That only reinforced the majority’s conclusion that the FSIA did not apply to criminal proceedings, since it would be odd for most FSIA provisions to apply only in civil cases, but one, Section 1604, to apply in both civil and criminal cases.  According to the majority, “[t]he better and more natural reading” is that all of the FSIA provisions “operate in tandem within a single universe of civil matters.”[13] 

The majority noted Halkbank’s concern that if the FSIA does not apply, state prosecutors might bring criminal proceedings against foreign sovereigns and their agencies or instrumentalities. But the majority stated that it “must interpret the FSIA as written,” while noting that “it is not evident that the premise of Halkbank’s consequentialist argument is correct.”[14] In that regard, the Court noted (without suggesting outcomes) the lack of history of domestic-state attempts to prosecute foreign states in state courts, the possibility of a suggestion of immunity filed in such actions by the Executive Branch, possible application of foreign-affairs preemption, and ultimately potential Supreme Court review of immunity from such prosecutions.

Even though it held the FSIA did not apply, the majority found that the Second Circuit did not fully address the application of common law immunity and remanded for further proceedings on that issue.[15]

Justices Neil Gorsuch and Samuel Alito concurred in part and dissented in part. They agreed with the majority that Section 3231 provided the district court with subject matter jurisdiction but took the position that the FSIA applies to criminal proceedings. The dissenting justices argued that Section 1604 of the FSIA “sets forth the FSIA’s general immunity rule” and refers broadly to “the jurisdiction of the Courts of the United States and the States” over foreign states and their agencies or instrumentalities unless an exception to jurisdictional immunity applies.[16] 

The dissenting justices further argued that the fact that certain FSIA provisions refer to civil actions reinforces their conclusion because if Congress had intended to limit Section 1604 to civil actions, it would have added express language about civil actions similar to that in the other provisions.[17] They also noted that not all of the exceptions to jurisdictional immunity are limited to civil cases, noting that the commercial activity exception refers to “any case . . . in which the action is based upon a commercial activity . . . .”[18]  The dissenting justices then concluded that context cannot illuminate the meaning of Section 1604 because that provision is not ambiguous. Finally, they disagreed with the majority’s decision to remand for an analysis of common law immunity, arguing that such an analysis would present the lower court and the litigants “with an unenviable task” involving “[m]any thorny questions,” in contrast to the “simple rules” and “straightforward conclusion” provided by the FSIA.[19]

Justices Gorsuch and Alito nevertheless concurred in the result because they agreed with the Second Circuit that the “commercial activity” exception to jurisdictional immunity applied to Halkbank’s alleged activities.


Although it will take some time before the full ramifications of this decision are known, the Court’s decision in Halkbank has the potential to impact criminal prosecutions of foreign states, and foreign policy in a variety of ways. Among other things, the ruling may affect how courts apply canons of statutory construction to the FSIA, or how federal and state courts address the availability of common law sovereign immunity.  We will analyze those potential impacts and others in the coming weeks.

[1] Case No. 21-1450, Decision available at

[2] Samantar v. Yousuf, 560 U. S. 305 (2010).

[3] Aspects of this immunity will be addressed by the organizations charter, the international agreement on which the organization was formed, or perhaps immunity addressed in headquarters agreements.  Again, more analysis on this topic will follow.

[4] Decisionat 1.

[5] Id. at 1-2. 

[6] 7 Cranch 116 (1812).

[7] Decision at 3-5.

[8] Id. at 7. 

[9] Id. at 7-8. 

[10] Id. at 9.

[11] 28 U.S.C. § 1604.

[12] Decision at 10-11.

[13] Id. at 11. 

[14] Id. at 13-14.

[15] Id. at 14-15.

[16] Dissent at 2-3.

[17] Id. at 4.

[18] Id.

[19] Id. at 5-7.

Under China’s data protection regulatory framework, data processors are required to pass a security assessment conducted by the cybersecurity regulator before transferring certain categories or volumes of data out of China. This January, six months after the Cyberspace Administration of China (“CAC”) released the Measures on Security Assessment of Outbound Data Transfers (“Measures”), the Beijing counterpart of CAC reported the first two cases where the data processors passed the security assessments led by CAC, which sheds some light on the uncertainty and complexity of the security assessment.

Uncertainty of Reviewing Process and End of Grace Period

As disclosed by Beijing CAC, as of February 22, 2023, Beijing CAC has assisted more than 310 entities with their potential applications for the security assessment of outbound data transfers, and has received 48 formal applications from organizations in industries such as technology, e-commerce, healthcare, finance, automotive, and civil aviation, including multinational companies. Among many applications, CAC granted two organizations with the approval for transferring data out of China, namely the Beijing Friendship Hospital of the Capital Medical University and Air China.

Pursuant to the Measures, an application for the security assessment should first be submitted to the local CAC for review. Once approved at the local level, the application will be escalated to CAC for final approval.  Though the total processing time should be no longer than 57 working days as provided in the Measures, the Measures allow CAC to extend the reviewing period if necessary. Therefore, the total processing time is much longer. Given the 6-month grace period for data processors ended in March 2023, multinational companies with the necessity of transferring data out of China should prepare for the security assessment application to be compliant.

For Multinational Companies: Challenging Yet Attainable

Given the details of the two cases approved by the CAC are not yet disclosed to the public, there isn’t guidance regarding how the security assessment is being processed now.

However, as disclosed by Beijing CAC, the applications from some multinational companies are currently under CAC’s review after being approved at the Beijing level. Additionally, Beijing CAC has completed the review process for six other companies; their applications will be provided to CAC for further review. While we will continue to keep an eye on CAC’s review process, we expect to see the first case of a multinational company getting through the review process soon.

Practically, more entities are likely to be subject to security assessment than as required by the Measures. For multinational companies with the needs to transfer data out of China, they should be aware that the CAC-led security assessment is time consuming and challenging under stringent regulations. They also should be prepared for the data security compliance requirements, such as conducting self-assessments, or seeking professional advice on alternative choices to a security assessment.

Seyfarth’s China team proactively advises foreign clients in connection with their data protection, cross-border data transfers, and other data related compliance matters. 

To find out more about Seyfarth’s PRC Practice and how they can help your business, please feel free to reach out to the authors, Wan LiLeon Mao, and Cece Zhang.


On 17 February 2023, the China Securities Regulatory Commission (“CSRC“) announced the “Trial Measures for the Administration of Overseas Issuance and Listing of Securities by Domestic Enterprises” (《境内企业境外发行证券和上市管理试行办法》) (the “Trial Measures“) with five supporting guidelines (the “Guidelines“). The effective date of the Trial Measures and the Guidelines are 31 March 2023. With such implementation, the following old rules and regulations will be repealed accordingly:

(i) (Notice on the Implementation of the Mandatory Provisions of Articles of Association of Companies to be Listed Overseas (《关于执行到境外上市公司章程必备条款的通知》)

(ii) The Special Regulations on the Overseas Offering and Listing of Shares by Joint Stock Limited Companies (《国务院关于股份有限公司境外募集股份及上市的特别规定》)

(iii) Circular of the State Council on Further Strengthening the Administration of Share Issuance and Listing Abroad (《国务院关于进一步加强在境外发行股票和上市管理的通知》)

We highlight some of the major changes made by the Trial Measures, which will affect the PRC companies seeking listing overseas (including Hong Kong).

What are domestic enterprises?

According to Article 2 of the Trial Measures, domestic enterprises for overseas listing (whether by way of direct overseas listings or indirect overseas listings) are subject to the requirements under the Trial Measures. By relying on the “substance over form” principle, not only are the companies incorporated in the PRC (H-share companies) subject to the new rules, but overseas incorporated companies with principal operations[1] in the PRC, such as red-chip companies, are also subject to the new rules.

Filing requirements

To replace the CSRC approval system, under the Trial Measures both H-share companies and “red-chip” companies seeking to list overseas (including Hong Kong) need to do the requisite filings (including a filing report, a PRC legal opinion, etc.) with CSRC within three days after submission of its listing application (Article 16 of the Trial Measures). Then CSRC will review the documents and will complete the filing procedures and publish the filing results on the CSRC website within 20 working days (Article 19 of the Trial Measures). The content of the filed documents shall be truthful, accurate, and complete (Articles 12 and 20 of the Trial Measures). Otherwise, substantial penalties and fines can be imposed (Chapter V – Legal Liabilities of the Trial Measures). Therefore, CSRC still retains its general vetting power for processing the filings. 

Transitional period

According to the Notice for the Administration of Filing of Overseas Issuance and Listing of Securities by Domestic Enterprises 《关于境内企业境外发行上市备案管理安排的通知》, domestic enterprises that have been listed overseas (including Hong Kong) by or before the implementation of the Trial Measures on 31 March 2023 will not be required for the requisite filings with the CSRC. A 6-month transitional period will be granted to the PRC companies that have obtained the approval of overseas regulators or exchanges (such as passed the hearing of The Stock Exchange of Hong Kong Limited (“HKSE”)) but have not yet completed their listing. If they can complete their listing within the transitional period, they will not be required for the requisite filing with the CSRC, too.

The emphasis on national security and quality of the domestic enterprises seeking listing overseas

The Trial Measures lists the circumstances where a domestic enterprise is prohibited from offering and listing securities overseas in Article 8. For instance:

(a) National security: If the issuance and listing of securities overseas may endanger national security, it is prohibited from listing overseas. Further, certain types of PRC companies (such as internet companies) are required to go through national security review or obtain clearance from relevant authorities if necessary before making any filings with the CSRC.

(b)  Criminal offences: if a domestic enterprise, its controlling shareholders, or its de facto controller has committed a criminal offence such as corruption, bribery, embezzlement, misappropriation of property, or has undermined the order of the socialist market economy within the last three years, it is prohibited from listing overseas.

(c) Subject of investigation: if a domestic enterprise is under investigation in connection with major violation of laws and regulations, it is prohibited from listing overseas.

VIE structure

The VIE structure is permissible under the new regime so long as it is not in violation of the relevant laws and regulations in the PRC. VIE-structured companies also need to undergo the filing procedures, and they must specify the reasons and arrangements for the adoption of such structure in their filed documents[2]. Since the VIE structure often attracts a lot of attention and concerns from HKSE and the PRC authorities, it is advisable to seek legal advice about the feasibility in advance. 

Further guidance from HKSE expected

In light of the implementation of the Trial Measures, HKSE will make necessary amendments to remove the old requirements in connection with the PRC issuers and update the documentary requirements to reflect the new filing procedures under the Trial Measures. HKSE published its consultation paper on such proposed amendments to the Listing Rules in February 2023, and it is expected that more guidance will be issued by HKSE after the consultation has been completed.

PRC domestic enterprises which are seeking listing in Hong Kong should consult our team regarding the compliance with the relevant rules and regulations under the new regime.

Link to the Trial Measures (Chinese version)

Link to the consultation paper

[1] Article 15 of the Trial Measures sets out the circumstances under which a domestic enterprise is deemed as listing overseas indirectly.

[2] For the detailed requirements about the filing documentation, please refer to “Guideline No. 2 for listing overseas: Guidance on the content and format of the filing materials”《境外发行上市类第2号:备案材料内容和格式指引》

As we’ve previously written, complications arise for foreign sovereigns (States) and private companies when they structure commercial transactions. States prefer to hold as much of their immunities as is possible, while private companies prefer the State waive all immunities. This is particularly true with respect to execution on a judgment for breach of the agreement underlying the transaction. The latter is complicated because enforcement or execution immunities (garnishments or execution on assets to satisfy a judgement) are more narrow than jurisdictional immunities (haling the State into Court to obtain a judgment).

Many foreign missions reside in New York. And a recent New York state court decision highlights the complications arising from leases of real property made by a State and a private company. Although it does not address execution immunity, it highlights the issues that arise when arranging lease terms, preparing and serving civil actions, lease terms that in the court’s view operated as implied waivers of immunity, commercial activity exceptions to jurisdictional immunity, and contractual arrangements for service implied from the notice provisions of the lease. The case provides a reminder that foreign sovereign immunity issues can come up in many contexts, including otherwise “routine” disputes.

101-115 West 116th Street Corp. v. Consulate General of the Republic of Senegal, Index No. 154994/2020 (N.Y. Cty. Sup. Ct.) involved a dispute between a landlord and the Consulate General of the Republic of Senegal. The landlord and the Consulate entered into a lease for the second floor of a building on 116th Street in Manhattan. The landlord argued the Consulate held-over in the premises for several months after the lease ended, and asserted the Consulate  failed to pay rent for those months pursuant to the terms of the agreement (which included a rent calculation for any hold-over period). The landlord eventually sued in New York state court for breach. The Consulate did not remove the case to federal court, and argued that it was immune from the Court’s jurisdiction under both the Foreign Sovereign Immunities Act (FSIA) and the Vienna Convention on diplomatic immunity. On summary judgment, the New York state court ruled in favor of the landlord, rejecting the Consulate’s various immunity defenses.[1] 

The court began by noting the well-known rule that the FSIA “provides the sole basis for obtaining jurisdiction over a foreign state in the courts of this country,” and that courts can exercise jurisdiction only if exceptions to immunity set forth in the FSIA are present.[2]   

The court first addressed the Consulate’s threshold argument that the Consulate cannot be sued because it “is not a cognizable legal entity.” The Consulate argued that the landlord should have sued the Permanent Mission of the Republic of Senegal.[3] The court responded by noting case law that consulates general can be sued.[4] The court also did not accept the Consulate’s argument that the Vienna Convention on diplomatic immunity applied because the Convention applies only to individuals, not to the Consulate itself.[5]

Turning to the heart of the dispute – the lease — the court found that the Consulate had waived its immunity for two, independent reasons. First, the court found that the Consulate had impliedly waived its immunity in its lease with the landlord, which stated that the lease would be construed under New York law and that actions or proceedings arising out of the lease would be litigated only in federal or state courts located in New York City. The court held that “[t]his language illustrates defendant’s intent, by implication, to subject any dispute arising out of the Lease to adjudication in accordance with New York law in courts within the United States.”[6]  The FSIA withdraws immunity under certain exceptions. This aligns with the theory of restrictive sovereign immunity, which, put briefly, derives from the difference between acts taken by a State in its sovereign capacity versus acts taken in the commercial market similar to a private actor. The court found that the Consulate was not immune because entering into a lease for property is a “commercial activity” and thus it concluded it fell under the commercial activity exception to the FSIA.[7] 

The court also determined that a third FSIA exception relating to “immovable property” did not apply because the dispute related to unpaid rent, rather than to the property itself, but that was irrelevant because the other two exceptions applied.[8] 

Finally, the court addressed the FSIA’s specific requirements for service of process on a sovereign entity. The FSIA prescribes the requirements for service on a State in terms different from the rules applicable to private parties. Among these provisions, the FSIA permits service by “any special arrangement for service between the plaintiff and the foreign state or political subdivision.” The Court construed the lease’s general notice provision – which covered routine notices about the lease – to be a “special arrangement”[9] that covered service of process, even though the provision did not mention service.

This New York state court decision provides a potentially useful summary of issues that can arise between foreign sovereigns and private contracting parties, as well as summarizing principles both parties should keep in mind when entering into contracts.

[1] Index No. 154994/2020, NYSCEF Doc. No. 37.

[2] Id. at 6 (internal quotation marks omitted). 

[3] Id.

[4] Id. at 8-9.

[5] Id. at 9.

[6] Id. at 11-12.

[7] Id. at 12. 

[8] Id.

[9] Id. at 13-16. 

Seyfarth’s Commercial Litigation practice group is pleased to provide the third annual installment the Commercial Litigation Outlook, where our nationally-recognized team provides insights about litigation issues and trends to expect in 2023.

The continuing global tumult and increasing chances for a recession will weigh heavily on the litigation outlook for 2023. We expect an uneven year where some litigation booms, some busts. As was true last year, the trick to navigating the upcoming challenges will require clients and their counsel to be adaptive, creative, and proactive.

Trends covered in this edition include: Antitrust, Bankruptcy, Consumer Class Actions, Consumer Financial Services Litigation, eDiscovery & Innovation, ESG, Franchise & Distribution, Health Care Litigation, Insurance, International Dispute Resolution, Privacy, Real Estate Litigation, Securities Litigation, Trade Secrets, Computer Fraud & Non-Competes and the Trial Outlook.

Click here to download the 2023 Commercial Litigation Outlook.

On 16 November 2022, EU Regulation 2022/2065, better known as the Digital Services Act (“DSA”), came into force. The DSA is a key development in the use of online services in the European Union (“EU”), with an impact on online services as significant as the one which the General Data Protection Regulation (“GDPR”) had upon the collection, use, transfer, and storage of data originating in the EU on 25 May 2018.


The DSA sets out rules and obligations for digital services providers that act as intermediaries in their role of connecting consumers with goods, services, and content.  

Continue Reading The EU Digital Services Act

Seyfarth partners Rebecca Davis is moderating and Sara Beiro Farabow is speaking on the “Year In Review” panel for GAR: Live: Atlanta 2022. Rebecca Davis is co-chair of the program. Seyfarth is also sponsoring the GAR: Live: Atlanta, which will take place on September 13th in Atlanta, Georgia.

Topics at GAR: Live this year include:

  • Keynote address
  • Year in Review
  • Looking forward – Dealing with disruption
  • Afternoon keynote address
  • Arbitration’s “new normal” – what’s on the cards?
  • The GAR Live: Debate

For more information or to register, click here.

On June 1, 2022, Bill 96, an act passed by the Québec legislature, became law.  In general, Bill 96 broadens French language requirements, affecting many aspects of commercial, governmental, and public life in Québec.  Sanctions for non-compliance can include fines ranging up to $7,000 per day for individuals and up to $30,000 per day for entities, with increased fines for repeat offenders.

Bill 96’s new requirements include the following:

Continue Reading New Law in Québec Will Impact Businesses And Trademarks

As we’ve previously written (most recently here), 28 U.S.C. § 1782 is a useful federal statute that allows overseas litigants to obtain discovery through U.S. federal courts for use in the overseas litigation.  With respect to adjudication of Section 1782 applications, some federal courts have disagreed about whether such are “dispositive” or “non-dispositive” matters when the application is decided by a federal magistrate judge, as opposed to a federal district judge.  The distinction is relevant because federal district judges review magistrate judges’ reports and recommendations on “dispositive” matters de novo, but review magistrate judges’ rulings on “non-dispositive” matters only to determine whether the ruling was clearly erroneous or contrary to law.[1]

In a recent decision, the Ninth Circuit Court of Appeals held that Section 1782 applications are “dispositive” for purposes of a magistrate judge’s ruling on the issue.[2] The Ninth Circuit reasoned that the matter was “dispositive” because “the magistrate judge’s order denied the only relief sought by [the applicant] in this federal case: court-ordered discovery.” The court distinguished the situation from the types of discovery matters typically heard by a magistrate judge because those discovery matters are usually in the context “of an ongoing civil case in that same federal court for monetary damages, injunctive relief, or the like.” In the Section 1782 context, however, there is no ongoing federal civil case: the Section 1782 application is the only relief sought in, and the only purpose for having commenced, the action.[3]

Continue Reading Ninth Circuit Weighs In On Section 1782 Issue That Has Split Federal Courts

One of the key challenges in the course of an international arbitration with a Mainland China based counterparty is the enforcement of interim measures granted by the tribunal. As a general rule, a Mainland court will not grant any interim relief or provide any assistance to parties to an arbitration outside of Mainland China. This was an issue in Hong Kong until the Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and the Hong Kong Special Administrative Region came into force on 1 October 2019 and enabled recognized institutional arbitration institutions in Hong Kong to apply for relief in Mainland China and vice versa.

The arrangement has given Hong Kong the edge when choosing an arbitration seat for a contract with a Chinese counterparty. Macau, China’s other special administrative region, has not had the same advantages, meaning that whilst Hong Kong is one of Asia’s major arbitration hubs international arbitration in Macau is relatively uncommon.

Continue Reading New Interim Arbitration Measures between Mainland China and Macau: Bringing Macau in line with other Favored Arbitral Seats in Asia