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Extracted Text (OCR)
14 JAM v. INTERNATIONAL FINANCE CORP.
Opinion of the Court
cerns that we identified when considering similar litiga-
tion under the Alien Tort Statute. See Jesner v. Arab
Bank, PLC, 584 U.S. __, _ —__ (2018); Kiobel v. Royal
Dutch Petroleum Co., 569 U.S. 108, 116-117 (2018).
The IFC’s concerns are inflated. To begin, the privileges
and immunities accorded by the IOIA are only default
rules. If the work of a given international organization
would be impaired by restrictive immunity, the organiza-
tion’s charter can always specify a different level of im-
munity. The charters of many international organizations
do just that. See, e.g., Convention on Privileges and Im-
munities of the United Nations, Art. II, §2, Feb. 18, 1946,
21 U.S. T. 1422, T. I. A. S. No. 6900 (The United Nations
... shall enjoy immunity from every form of legal process
except insofar as in any particular case it has expressly
waived its immunity’); Articles of Agreement of the Inter-
national Monetary Fund, Art. IX, §8, Dee. 27, 1945, 60
Stat. 1418, T. I. A. S. No. 1501 (MF enjoys “immunity
from every form of judicial process except to the extent
that it expressly waives its immunity’). Notably, the
IFC’s own charter does not state that the IFC is absolutely
immune from suit.
Nor is there good reason to think that restrictive im-
munity would expose international development banks to
excessive liability. As an initial matter, it is not clear that
the lending activity of all development banks qualifies as
commercial activity within the meaning of the FSIA. To
be considered “commercial,” an activity must be “the type”
of activity “by which a private party engages in” trade or
commerce. Republic of Argentina v. Weltover, Inc., 504
U.S. 607, 614 (1992); see 28 U.S.C. §1603(d). As the
Government suggested at oral argument, the lending
activity of at least some development banks, such as those
that. make conditional loans to governments, may not
qualify as “commercial” under the FSIA. See Tr. of Oral
Arg. 27-80.
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