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 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 ReadingSuing Over the Price of Gas
The Organization of Petroleum Exporting Countries (OPEC) was established in 1960 “to ensure the stabilization of prices by, among other means, the regulation of production.” On one level, OPEC is simply a cartel engaged in anticompetitive behavior. On another level, it is an organization of nation-states that plays a significant role in world politics. Since…
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 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)