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 ReadingD.C. Circuit Allows Venezuela Expropriation Case to Proceed
On October 3, 2025, the D.C. Circuit issued its latest opinion in Helmerich & Payne International Drilling Co. v. Venezuela. Judge Gregory G. Katsas affirmed the district court’s rulings that the Foreign Sovereign Immunities Act’s (FSIA) expropriation exception allows the plaintiff’s claim, that the district court has personal jurisdiction, and that the act of state…
Continue ReadingFederal Circuit Revives Afghanistan Lease Dispute
In a recent decision, Lessors of Abchakan Village v. Secretary of Defense, the Federal Circuit reversed the Armed Services Board of Contract Appeals (the “Board”) and revived a claim by Afghan villagers for $28 million in unpaid rent on a lease for a U.S. military base. Whether the villagers or the Government of Afghanistan owned…
Continue ReadingAll I Want for Christmas (from the Supreme Court)
Following up on John Coyle’s post yesterday, I’ve prepared my own list of things I wish courts in the United States would do differently in transnational litigation. 1. Abandon the U.S.-Conduct Requirement for the Presumption Against Extraterritoriality The Supreme Court uses a presumption against extraterritoriality to determine the geographic scope of federal statutes. There have…
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)