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 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 ReadingA View of Transnational Litigation from the State Department
I recently had the pleasure of reading Footnotes to History: Law and Diplomacy by TLB contributor Mark Feldman. Mark spent sixteen years (1965-1981) at the U.S. State Department’s Office of the Legal Adviser, where he helped write the Foreign Sovereign Immunities Act (FSIA), the Foreign Corrupt Practices Act, and the Iran Claims Settlement Agreement. The…
Continue ReadingDistrict Court Rejects Forum Non Conveniens Motion in Haiti Price-Fixing Case
The plaintiffs in Celestin v. Martelly brought a class action alleging that Haitian President Michel Joseph Martelly hatched a scheme to impose fees and fix prices on money transfers, food remittances, and international calls to and from Haiti and that Haitian and U.S. companies joined the scheme in violation of U.S. antitrust law, the federal…
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)