Act of State Doctrine

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…

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Choice of Law in the American Courts in 2022

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Executive Control Versus “Deference” in Halkbank

On January 17, the Supreme Court heard oral argument in Turkiye Halk Bankasi A.S. v. United States(Halkbank) on whether the Foreign Sovereign Immunities Act (FSIA) applies to criminal prosecutions. One argument advanced by the government in Halkbank (and other immunity cases) is that the executive branch has absolute control over immunity determinations not governed by…

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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)