The act of state doctrine provides that U.S. courts will not question the validity of an official act of a foreign government fully performed within its own territory. The act of state doctrine is a doctrine of federal common law that is binding on state courts as well as federal courts. There are several exceptions to the doctrine, including one for expropriations in violation of international law created by Congress in the Second Hickenlooper Amendment, 22 U.S.C. 2370(e)(2).
A Primer on the Act of State Doctrine
The act of state doctrine is a federal common law doctrine providing that courts in the United States will not question the validity of an official act of a recognized foreign government fully performed within its own territory. The doctrine is often applied in cases like Banco Nacional de Cuba v. Sabbatino (1964) to require…
Continue ReadingFifth Circuit Applies Act of State Doctrine in Holocaust Art Case
Does the act of state doctrine apply to mistakes? On May 29, 2024, the Fifth Circuit held in Emden v. Museum of Fine Arts, Houston that the doctrine bars a claim for return of a painting that the Dutch government gave to the wrong person after World War II. There were several copies of this…
Continue ReadingThrowback Thursday: Banco Nacional de Cuba v. Sabbatino
Sixty years ago, on March 23, 1964, the U.S. Supreme Court handed down its decision in Banco Nacional de Cuba v. Sabbatino. By a vote of 8-1, the Court held that the act of state doctrine prevented U.S. courts from questioning the validity of Cuba’s expropriations of property owned by U.S. nationals, even if the…
Continue ReadingSecond Circuit Hears Halkbank Oral Argument
On February 28, 2024, the Second Circuit heard oral argument in United States v. Turkiye Halk Bankasi A.S. From the judges’ questions—which admittedly came almost exclusively from Judge Bianco—the panel seems likely to hold that Halkbank, a Turkish state-owned bank, is not immune under federal common law from criminal prosecution for violating U.S. sanctions on Iran. That…
Continue ReadingRestatement (Fourth) of Foreign Relations Law § 441
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964)
W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., Int’l, 493 U.S. 400 (1990)
John Harrison, The American Act of State Doctrine, 47 Geo. J. Int’l L. 507 (2016) (SSRN)
Chimène I. Keitner, Adjudicating Acts of State, in Foreign Affairs Litigation in U.S. Courts 49 (John Norton Moore ed., 2013) (SSRN)
Gregory Fox, Reexamining the Act of State Doctrine: An Integrated Conflicts Analysis, 33 Harv. Int’l L.J. 521 (1992) (Wayne State)
Louis Henkin, Act of State Today, Recollections in Tranquility, 6 Colum. J. Transnat’l L. 175 (1967)