Page:Budha Ismail Jam, et al. v. International Finance Corporation.pdf/13

10 agency documents that “would not be available by law to a party… in litigation with the agency” incorporates the general law governing attorney work-product privilege as it exists when the statute is applied. FTC v. Grolier Inc., 462 U. S. 19, 20, 26–27 (1983) (emphasis added); id., at 34, n. 6 (Brennan, J., concurring in part and concurring in judgment). Likewise, a general reference to federal discovery rules incorporates those rules “as they are found on any given day, today included,” El Encanto, Inc. v. Hatch Chile Co., 825 F. 3d 1161, 1164 (CA10 2016), and a general reference to “the crime of piracy as defined by the law of nations” incorporates a definition of piracy “that changes with advancements in the law of nations,” United States v. Dire, 680 F. 3d 446, 451, 467–469 (CA4 2012).

The same logic applies here. The IOIA’s reference to the immunity enjoyed by foreign governments is a general rather than specific reference. The reference is to an external body of potentially evolving law–the law of foreign sovereign immunity–not to a specific provision of another statute. The IOIA should therefore be understood to link the law of international organization immunity to the law of foreign sovereign immunity, so that the one develops in tandem with the other.

The IFC contends that the IOIA’s reference to the immunity enjoyed by foreign governments is not a general reference to an external body of law, but is instead a specific reference to a common law concept that had a fixed meaning when the IOIA was enacted in 1945. And because we ordinarily presume that “Congress intends to incorporate the well-settled meaning of the common-law terms it uses,” Neder v. United States, 527 U. S. 1, 23 (1999), the IFC argues that we should read the IOIA to incorporate what the IFC maintains was the then-settled meaning of the “immunity enjoyed by foreign governments”: virtually absolute immunity.

But in 1945, the “immunity enjoyed by foreign