Cite as: 507 U. S. 349 (1993)
Stevens, J., dissenting
join Justice Kennedy's opinion insofar as it concludes that the "failure to warn" claims should be remanded.
Justice Stevens, dissenting. Under the Foreign Sovereign Immunities Act of 1976 (FSIA), a foreign state is subject to the jurisdiction of American courts if two conditions are met: The action must be "based upon a commercial activity" and that activity must have a "substantial contact with the United States." 1 These two conditions should be separately analyzed because they serve two different purposes. The former excludes commercial activity from the scope of the foreign sovereign's immunity from suit; the second identifies the contacts with the United States that support the assertion of jurisdiction over the defendant.2
1 Section 4(a) of the FSIA provides: "(a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case—
. . . . . "(2) 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(a)(2).
The key terms of this provision are defined in § 1603. Section 1603(e) defines "commercial activity carried on in the United States by a foreign state" as "commercial activity carried on by such state and having substantial contact with the United States." Section 1603(d), in turn, defines "commercial activity" as "either a regular course of commercial conduct or a particular commercial transaction or act." Thus, interpolating the definitions from § 1603 into § 1605(a)(2) produces this equivalence:
"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 regular course of commercial conduct or a particular commercial transaction carried on by such state and having substantial contact with the United States."
2 See, e. g., Maritime International Nominees Establishment v. Republic of Guinea, 224 U. S. App. D. C. 119, 130, n. 18, 693 F. 2d 1094, 1105, n. 18 (1982) ("the immunity determination involves considerations distinct from the issue of personal jurisdiction, and the FSIA's interlocking provisions are most profitably analyzed when these distinctions are kept in mind"). See also J. Dellapenna, Suing Foreign Governments and Their
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