The Act of State Doctrine

Question 1

The Act of State Doctrine

Answer 1

• Does not provide jurisdictional immunity

• Principle of choice of law, instructing a court to apply the law of a foreign state respecting an act made by the foreign government in its own territory.

Still has notion of comity. It is like a choice of law instructing a court to apply the law of a foreign state respecting an act made by the foreign government in its own territory

Question 2

Underhill

Answer 2

Facts: Hernandez leads a revolt in Venezuela. Underhill is a US citizen who constructed a water system for city of Bolivar under a contract w/ government. Underhill applied to Hernandez for a passport and they refused him. He brings suit to recover damages for detention.

Court says:
• Acts of defendant were the acts of the gov. of Venezuala and as such are not properly the subject of adjudication in the courts of another government
• Here Hernandez was attempting to coerce Underhill to provide services for the good of the community, it does not warrant a finding that Hernandez did so with malice or w/ personal or private motive.

Famous Quote: “Every sovereign State is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.”

Question 3

Format for Determining whether suit can be brought against a foreign state

Answer 3

1) Apply the Foreign Sovereign Immunities Act:
•Is the defendant a foreign state?
•Do any of the FSIA exceptions apply in the case at bar?
2) Apply the Act of State Doctrine:
•Ask: Does the outcome of the case turn on whether the court gives validity to the public act of a foreign state?
•If the outcome of a case turns on the validity of the public act of a foreign state in its own territory, the court has to presume the act of state to be valid

(Applied in Underhill)

Question 4

Banco v. Sabbatino

Answer 4

Facts: US co. contract with CAV, an american co. in Cuba to import sugar from US. Cuba nationalizes the sugar industry and seizes the assets of the US co. CAV delivers the sugar anyways and the US co. pays CAV’s legal representative in US, Sabbatino. Banco sues Sabbatino for the money.

-Banco says nationalization was an “act of state”
- Sabbatino says the act was a violation of international law; doctrine should not be applied unless the Exec. branch asks the court to do so;
Cuba had brought the suit as a plaintiff and had given up its sovereign immunity.

• Supreme Court recognizes the act of state doctrine and says the Cuban act was not a violation of international law, because there was no clear international opinion that a seizure of land or property in a country by the government of that country was illegal.
• The executive does not have to ask the court to apply the doctrine because it will be assumed to apply because a single mistake could mess up US relations with foreign countries
• They did not waive immunity because a state can sue but not be sued.

Question 5

Second Hickenlooper Amendment

Answer 5

Subsequent to this decision Congress passed the Second Hickenlooper Amendment whereby cases involving claims to title or other property rights must be decided on the merits. . Wont apply in any case in which an act of a foreign state is not contrary to international law or the President states that such adjudication may embarrass foreign policy efforts, the amendment has been construed very narrowly by subsequent court decisions.

Question 6

What do forum non conveniens, foreign sovereign immunity, and act of state have in common?

Answer 6

They are all about notions of comity