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WhatsApp, Sovereign Immunity and Clear, Unambiguous and Explicit Waiver


Steven Kay KC and Gillian Higgins received the decision from the US District Court that WhatsApp service of a claim and discussions with Government lawyers in South Sudan were not clear, unambiguous and explicit waiver of sovereign immunity. 

n the US District Court for the District of Columbia, Case No. 21-1821 (RC), Natalie Chang, et al. v Republic of South Sudan et al. the Defendants succeeded under the US Foreign Sovereign Immunities Act in dismissal of the claim.

To establish jurisdiction the Claimants sent a letter and draft claim via WhatsApp to the Advocate General to which he replied: “OK Well received” and later the Legal Adviser to the President of South Sudan stated to Plaintiffs’ local counsel that the Plaintiffs “should bring their claims” so the case may be resolved. Challenging the issuance of proceedings in the US, the Defendants pleaded that the government officials’ statements constitute “no more than [Defendants’] acknowledgment of receipt,”

 United States District Judge Rudolf Contreras held: "The statements alleged to have been made by two South Sudanese government officials, even when taken together with South Sudan’s purported willingness to accept service through a special arrangement with Plaintiffs’ counsel, do not rise to the level of being a clear and unambiguous explicit waiver of South Sudan’s immunity to suit. Nor does this case fall within the three recognized forms of implied waiver of immunity. Thus, although the Court sympathizes with Plaintiffs and hopes that they will attain justice for the abuses they have suffered, the Court must dismiss this case for lack of subject matter and personal jurisdiction." 

Steven Kay KC instructed counsel Duncan Levin of Levin & Associates PLLC, and Ronald S. Sullivan to act on behalf of the Republic of South Sudan. A decision is awaited upon a linked claim which is also challenged on the grounds of sovereign immunity.

Read the full decision here.