The United States Court of Appeals for the District of Columbia found subject matter jurisdiction in Kirkham v. Société Air France allowing the case against the foreign government-owned airline to proceed in the United States. On November 22, 2005, the court decided that the purchase of an airline ticket in the United States was sufficient to invoke the commercial activities exception under the Foreign Sovereign Immunities Act (FSIA) against an airline owned by a foreign nation, even without other activity in the United States relative to the substance of the complaint.

The District Court's analysis of jurisdictional facts included the merits of the plaintiff's claim including breach, causation and duty of care, while the Court of Appeals reduced the scope of jurisdictional facts to those facts that would establish a claim at all. Relying on Saudi Arabia v. Nelson, 507 U.S. 349, 357 (1993), the Court of Appeals interprets Nelson's standard of elements contributing to claims to be each fact necessary to establish a claim, rather than the facts without which the plaintiff will lose.

Allowing this single element of commercial activity to constitute a sufficient nexus for subject matter jurisdiction under the FSIA will have far reaching consequences and bring into question what constitutes state control of commercial entities in the future.   -   by Sally Laing, Legal Assistant, Berliner, Corcoran & Rowe, LLP, Washington, DC.