Amicus Curiae Brief — WS Kirkpatrick & Co. v. Environmental Tectonics Corp., Int'l
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Supreme Ceurt, U.S,
FILED
AUG 24
No. 87-2066 JOSEPH F SP ANIOL, JR,
CLE’K
ese
IN THE
Supreme Court of the United States
OCTOBER TERM, 1989
W.S. KIRKPATRICK & Co., INC., et ai.,
Petitioners.
Vv.
ENVIRON MENTAL TECTONICS CORPORATION,
INTERNATIONAL,
Respondent.
On a Writ of Certiorari to the
United States Court of Appeals
for the Third Circuit
BRIEF OF THE REPUBLIC OF CHINA
AS AMICUS CURIAE
DANIEL K. MAYERS
Counsel of Record
DAVID WESTIN
GARY B. BORN
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037-1420
(202) 663-6000
Counsel for Amicus Curiae
August 24, 1989 The Republic of China
WILSON - Eres Printing Co.. Inc. - 789-CO96 - WasHINGToN, O.C. 20001
TABLE OF CONTENTS
TABLE OF AUTHORITIES .................. silleatiihahiniesii .
INTEREST OF AMICUS CURIAE ......000.0000000000.0.0.-..
En
I.
Il.
Il.
IV.
THE ACT OF STATE DOCTRINE IS A WELL-
ESTABLISHED PRINCIPLE OF AMERICAN
EINE censcenencncsntcecensemensccesemasessnsvensese
THE ACT OF STATE DOCTRINE IS BASED
ON THE DUAL PRINCIPLES OF INTERNA-
TIONAL COMITY AND SEPARATION OF
POWERS ................. isiheiecldeibabiacmnisiataiasbianndinitiinitbemvia
A. The Principle of International Comity ........
B. The Separation of Powers Doctrine...
THE ACT OF STATE DOCTRINE IS A
FLEXIBLE RULE WHOSE APPLICABILITY
MUST DEPEND ON THE NATURE OF THE
FOREIGN SOVEREIGN ACT AND THE
CHALLENGE BEING MADE TO THAT ACT.
THE ACT OF STATE DOCTRINE PRE-
CLUDES ADJUDICATION OF THE PRES-
ENT DISPUTE ............... icpikisitiaiachiiiniiaesiemene on
A. This Foreign Government Contract Award
Was An “Act of State”... ee
B. Adjudicating Whether the Award of the
Foreign Governmert Contract Was the Re-
sult of Eribery Would Require the US.
Court To “Sit in Judgment” on the Foreign
0) EE
C. The Political Branches Have “'ot Clearly
Articulated any U.S. Public Policy Requir-
ing Adjudication of this Dispute —.................
I oi aeacachinatnteiatetinnieantinmnpadbenies
Page
il
12
14
17
17
21
26
30
ii
TABLE OF AUTHORITIES
Cases Page
*Alfred Dunhill of London, inc. v. Republic of
Se 2 Fo 2 Eee passim
Allied Bank International v. Banco Credito Agri-
cola de Cartago, 757 F.2d 516 (2d Cir.), cert.
dismissed, 473 U.S. 984 (1985) ...................0...... 21,
American Banana Co. v. United Fruit Co., 213
U.S. 347 (1909) . = a
American International Group, Ine. v. . Islamic Re-
publie of Iran, 498 F. Supp. 5622 (D.D.C. 1980),
vacated on other grounds, 657 F.2d 430 (D.C.
Cp, BBE D sccocceecccccececsennscnssssensnennnnneneae 27
Arango v. Guzman Travel Advisors Corp., 621 F.2d
1871 (Bt Cle. BBBBD ccccccnsosannnenennene 20
Baker v. Carr, 369 U.S. 186 (1962) ........................ 9
Banco de Espana v. Federal Reserve Bank, 114
P26 408 (26 Cle. BOGBD nccconmcctentmmeen 24
*Banco Nacional de Cuba v. Sabbatino, 376 U.S.
A) | | een _passim
Beck v. Manufacturers Hanover Trust Co., 125
Misc. 2d 771, 481 N.Y.S. 2d 211 (Sup. Ct. 1984) .. 27
Bernstein v. N.V. Nederlandsche-Amerikaansche,
810 P.26 SUG CBG Civ. BED ccncceeeeaen 28
Blad’s Case, 8 Swans. 603, 36 Eng. Rep. 991 (P.C.
1673, aff’d sub nom., Blad v. Bamfield, 3 Swans.
604, 36 Eng. Rep. 992 (Ch. 1674) 0.00000. 5
Boyle v. United Technologies Corp., 108 8. Ct. 2510
(BGBB) ...cccccce. cocoses cocsesocscsessenseccennmuennnnnnnnnnnnnnnnnan 14
Braka v. Bancomer, S.N.C., 762 F.2d 222 (2d Cir.
ss 16
Braniff Airways, Ine. 1 v. . CAB, 581 F.2d 846 (De.
Cir. 1978) . 28
Bremen v. Zapata ‘Off-Shore Co., “ “407 ‘Uv. s. q
> eo 11
Callejo v. Bancomer, Ss. A, 164 F. 2d 1101 (5th Cir.
* Cases chiefly relied upon.
TABLE OF AUTHORITIES—Continued
Page
Chemical Natural Resources, Inc. v. Republic of
Venezuela, 420 Pa. 134, 215 A.2d 864, cert. de-
nied, 385 U.S. 822 (1966) . 28
Citizens to Preserve Overton Park, Ine. : v. Vo'pe,
401 U.S. 402 (1971) . 25
Clayco Petroleum C . Occidental Petroleum
Corp., 712 F.2d 404 : Cir. 1983), cert. denied,
a 23
Compania de Gas de Nuevo Laredo, S.A. v. ‘Entez,
Inc., 686 F.24 322 (5th Cir. 1982), cert. denied.
460 U.S. 1041 (1983) . 17
Continental Ore Co. v. Union Carbide & Carbon
Corp., 370 U.S. 690 (1962)... . 20
Dames & Moore v. Regan, 453 U.S. 654 (1981) 12, 15
DeRoburt v. Gannett Co., 733 F.2d 701 (9th Cir.
1984), cert. denied, 469 U.S. 1159 (1985) — 17, 18, 23
Drexel Burnham Lambert Group Inc. v. Galadari,
777 F.2d 877 (2d Cir. 1985) 21
Duke of Brunswick v. King of Hanover, 6 Beav. 1
(1844), aff'd, 2 H.L. Cas. 1 (1848)... 5, 24
Earn Line S.S. Co. v. Sutherland S.S. Co., 254 F.
126 (S.D.N.Y. 1918), aff'd sub nom., The Clav-
eresk, 264 F. 276 (2d Cir. 1920) | 24
Risenberger v. Specter Industries, Inc., 644 F.
Supp. 48 (E.D.N.Y. 1986) . 29
Environmental Tectonics v. W.S. Kirkpatrick, Ine.,
847 F.2d 1052 (3d Cir. 1988), cert. granted, 57
U.S.L.W. 3841 (1989) . 23
*First Nationa! City Bank v. ~ Banco Nacional de
Cuba, 406 U.S. 759 (1972)... passim
First National City Bank v. Banco Para El Comer.
cio Exterior de Cuba, 462 U.S. 61) (1983) — 6, 14, 21
General Aircraft Corp. v. Air America, Inc., 482
F. Supp. 3 (D.D.C. 1979)... 18
Goldwater v. Carter, 444 U.S. 996 (1979) 9
* Cases chiefly relied upon.
iv
TABLE OF AUTHORITIES—Continued
Page
Hatch v. Baez, 14 N.Y. Sup. Ct. (7 Hun.) 596
GG ES 10, 21
*Hilton v. Guyot, 159 U.S. 113 (1895) _........... 10, 11
Hines v. Devidowitz, 312 U.S. 52 (1941) —............ 13
Hudson v. Guestier, 8 US. (4 Cranch) 293
C—O EE 5, 16
Hunt v. Coastal States Gas Producing Co., 570
S.W 2d 503 (Tex. Civ. App. 1978), aff'd, 583
S.W.2d 322 (Tex.), cert. denied, 444 U.S. 992
aR TS LCE AE EP 28
Hunt v. Mobil Oil Corp., 550 F.2d 68 (2d Cir.),
cert. denied, 434 U.S. 984 (1977) _....................... 8, 23
IAM vw. OPEC, 649 F.2d 1254 (9th Cir. 1981),
cert. denied, 454 U.S. 1163 (1982)... 17, 20, 22
Industrial Investment Development Corp. v. Mitsui
& Co., 594 F.2d 48 (5th Cir. 1979), cert. denied,
ees 8, 22
Interamerican Refinina Corp. v. Texaco Mereceibo,
Inc., 307 F. Sapp. 1291 (D. Del. 1970) ... 20, 22
Japan Line, Ltd. v. County of Los Angeles, 441
CE xyy——————————————————— 12, 13
Kalamazoo Spice Extraction Co. v. Provisional
Military Government of Socialist Ethiopia, 729
F.2d 422 (6th Cir. 1984) ........... = 27
*Lauritzen v. Larsen, 345 U.S. 571 (1958) .. nails 11
Lewis ex rel. National Semiconductor Corp. v.
Sporck, 612 F. Supp. 1316 (N.D. Cal. 1985) .. 29
L’Invincible, 14 U.S. (1 Wheat.) 238 (1816) _. 5, 16
Mannington Mills, Inc. v. Congoleum Corp., 595
RG yyy 20, 23
McLean v. International Hurvester Co., 817 F.2d
CC GG yyy 29
Mitsubishi Motors v. Soler Chryoler-Plymouth,
Inc., 473 U.S. 614 (1985)... SL 11
Morrison v. Olson, 108 S. Ct. 2597 (1988) . eS 15
National American Corp. v. Federal Republic of
Nigeria, 448 F. Supp. 622 (S.D.N.Y. 1978),
aff'd, 597 F.2d 314 (2a Cir. 1979) x
* Cases chiefly relied upon.
v
TABLE OF AUTHORITiES—Continued
Occidental of Umm Al Qaywawn, Inc. v. A Cer-
tain Cargo of Petroleum, 51/7 F.2d 1196 (5th
Cir. 1978), cert. denied, 442 U.S. 928 (1979).
Octjen v. Central Leather Co., 246 US. 297
0 ee 6, 8, 10,
O.N.E. Shipping, Ltd. v. Flota Mercante Granco-
lombiana, S.A., 830 F.2d 449 (2d Cir. 1987),
cert. denied, 109 8. Ct. 303 (1988) Eerie NS
Phoenix Canada Oi! Co. v. Texaco Inc., £60 F.
Supp. 1372 (D. Del. 1983), aff'd in part and
rev'd in part, 842 F.2d 1466 (3d Cir.), cert. de-
nied, 108 8. Ct. 269 (1988) ..............................
Ramirez de Areilano v. Weinberger, 745 F.2d 1500
(D.C. Cir. 1984), vacated, 471 US. 1113
(1985) -
Remington Rand Corp. v. | Business Systems, ‘Ine.,
830 F.2d 1260 (3d Cir. 1987) .
Republic of iraq v. First Nat'l City Bank, 353 F.2d
47 (2d Cir. 1965), cert. denied, 382 U.S. 1027
ee a ee ea
Republic of Philippines v. Marcos, 806 F.2d 344
(2d Cir. 1986), cert. denied, 107 S. Ct. 1597
Ere eee ne eee ae
Republic of Philippines v. Marcos, 818 F.2d 1473
(1987), vacated, 862 F.2d 1355 (9th Cir. 1988)
a
Riceud wv. American Metal Co., 246 US. 304
(1918)
Rich v. Naviera Vacuba S.A., 295 F.2d 24 (4th
Cir. 1961) .
Romero v. Internationel Terminal ‘Operating Co.
358 U.S. 354 (1959)
Salamar v. Secretary of State of India, [1906]
FREESE eraser naar Se re
The Santissima Trinidad, 20 U.S. (7 Wheat.) 283
(1822)
The Schooner Exchange 1 vr. .. McFaddon, li Us. (7
Page
27
13, 22
14, 21
14, 16
Cranch) 116 (1812) vast | 5,9, 18
vi
TABLE OF AUTHORITIES—Continued
Page
Sharon v. Time, Inc., 599 F. Supp. 538 (S.D.N.Y.
ee 16
Shields ex rel. Sundstrand Corp. v. Erickson, 710
F. Supp. 686 (N.D. Ill. 1989) .............................. 29
Societe Nationale Industrielle Aerospatiale v.
United States District Court, 482 U.S. 522
Seen ae ewe 10, 11, 15
*Underhill v. Hernendes, 65 F. 577 (2d Cir. 1895),
, © fb SS Fo passim
United States v. Belmont, 301 U.S. 324 (1937) _... 6
United States v. Curtiss-Wright Export Corp., 299
4 a 12
United States v. Morgan, 313 U.S. 409 (1941). 25
United States v. O’Brien, 391 U.S. 367 (1968) _. 25
United States v. Sisal Sales Corp., 274 U.S. 268
> —_ PCS Sane WO Sere or es OE 25
Weare v. Hylton, 3 U.S. (3 Dall.) 199 (1796) 5
Williams v. Curtiss-Wright Corp., 694 F.2d 300
(3d Cir. 1982) . ae ee 27
Zschernig v. Miller, 389 U Ss. 429 (1968) ste eR eas 25
Statutory Provisions
EE 27
15 U.S.C. § T8dd-1 (West Supp. 1989) . 29
22 U.S.C. § 2370(e) (2) (1982) - ear reere ac eed 27
The Foreign Sovereign Immunities ‘Act.
28 U.S.C. §§ 1602-1611 (1982 & West 00.
ee ee a 4
Legislat've Materials
Act of November 16, 1988, Pub. L.. No. 100-669,
$1, 102 Stat. 3969 (codified at 9 U.S.C. § 15
RASS Se See er 7
S. 1434, 97th Cong., Ist Sess., 127 Cong. Ree.
oa ho eeieiieitamannisbinnin 7
S. 2633, 96th Cong., 2d Sess., 126 Cong. Ree.
RELATES EES reer nner ere 7
* Cases chiefly relied upon.
vii
FABLE OF AUTHORITIES—Continued
S. 3379, 94th Cong., 2d Sess., 122 Cong. Rec.
I eee ee
H.R. Rep. No. 1487, 94th Cong., 2d Sess. 12
reprinted in, 1976 U.S. Code Cong. & Admin.
kL eae ae ee
Prohibiting Bribes to Foreign Officials: Hearings
on S. 3138, S. 3379, and S. 3418 Before the Sen-
ate Committee on Banking, Housing and Urban
Affairs, 94th Cong., 2d Sess. (1976)... ...........
Books, Articles & Miscellaneous
G. Born & D. Westin, /nternational Civil Litiga-
tion in United States Courts (1989) — *
J. Story, Commentaries on the Conflict of Laws
SE EEE nee tae see <=
6 M. Whiteman, Digest of International Law
I a nl cicgainienslaaniammnitin
Annotation, Modern Status of the Act of State
Doctrine, 12 A.L.R. Fed. 707 (1972 & Supp.
ene een
Bazyler, Abolishing the Act of State Doctrine, 134
U. Pa. L. Rev. 325 (1986) ............
Cardozo, Judicial Deference to State Department
Suggestions: Recognition of Prerogative or Ab-
dication to Usurper?, 48 Corn. L. Q. 461 (1963).
Halberstam, Sabbatino Resurrected: The Act of
State Doctrine in the Revised Restatement of
U.S. Foreign Relations Law, 79 Am. J. Int'l L.
68 (1985) .
Jessup, Has the Supreme Court ‘Abdicated One of
Its Functions?, 40 Am. J. Int’] L. 168 (1946) __.
Jones, Act of Foreiqn State in English Law: The
Ghost Goes East, 22 Va. J. Int'l L. 433 (1982).
Leigh, Sovereign Immunity—The Case of the
“Imias,” 68 Am. J. Int'l L. 280 (1974) _.....
Leigh & Sandler, Dunhill: Toward a Reconsidera-
tion of Sabbatino, 16 Va. J. Int'l L. 685 (1976).
Longo, Limiting the Act of State Doctrine: A Leg-
islative Initiative, 23 Va. J. Int'l L. 103 (1982)...
Page
12, 28
7
viii
TABLE OF AUTHORITIES—Continued
Page
Mathias, Restructuring the Act of State Doctrine:
A Blueprint for Legislative Reform, 12 Law &
Pol’y Int'l Bus. 369 (1980) We . 7
Restatement (Second) of Foreign Relations Law
nee 9, 16, 19, 24
Restatement (Third) of Foreign Kelations Law
(1987) ........ eT I Ne passim
Sovereign Immunity Decisions of the Department
of State, May 1952 to January 1977 (eds. M.
Sandler, D. Vagts & B. Ristau), published in,
U.S. Department of State, Digest of United
States Practice in International Law (1977)... 28
IN THE
Supreme Court of the United States
OCTOBER TERM, 1989
No. 87-2066
W.S. KIRKPATRICK & Co., INC., et al.,
* Petitioners,
ENVIRON MENTAL TECTONICS CORPORATION,
INTERNATIONAL,
Respondent.
On a Writ of Certio uri to the
United States Court of Appeals
for the Third Circuit
BRIEF OF THE REPUBLIC OF CHINA
AS AMICUS CURIAE
This amicus curiae brief is submitted in support of
petitioner W.S. Kirkpatrick & Co., Inc. By letters filed
with the Clerk of the Court, petitioner and respondent
have consented to the filing of this brief.
INTEREST OF AMICUS CURIAE
Amicus, the Republic of China, is a sovereign state
with close commercial and political ties to the United
States. The Republic of China is one of the United
States’ largest trading partners and accounts for a sig-
nificant portion of foreign investment in the United
States. One important aspect of the substantial bilateral
trade between the Republic of China and the United
States has been the Republic’s policy of effectively en-
couraging U.S. companies to bid for government construc-
tion and other projects in the Republic of China.
Amicus thus has two related interests in the applica-
tion of the Act of State doctrine in this case. First, the
extensive commerce between the two countries has in-
evitably led to disputes between U.S. citizens and either
the Republic of China itself or its citizens. As a result,
the Republic of China has not infrequently found itself
involved ‘n U.S. court proceedings in which its actions
have been brought into question. The Republic of China
thus has regularly observed the application of the Act of
State doctrine and its role in removing U.S courts from
situations where ruling on pending claims could jeopard-
ize U.S. foreign relations with sovereign states.
Second, th» Republic of China is concerned about the
consequences of permitting disgruntled bidders to chal-
lenge foreign government contract awards in U.S. courts
by alleging improprieties in the foreign government's
award process. These actions would necessarily discour-
age U.S. companies from bidding, and foreign govern-
ments from making, awards to U.S. competitors.
ARGUMENT
This case requires U.S. courts to determine whether the
Act of State doctrine precludes adjudication of a claim
that a U.S. company obtained a government construction
contract from a foreign government by paying bribes to
high officials of that government that were illegal under
U.S. law. Unlike the earlier federal prosecution of the
defendant U.S. company, the present action would require
U.S. courts to determine whether the alleged bribes were
actually paid (rather than merely offered) and, if paid,
whether they caused the foreign government to award the
contract to the U.S. company.
This case touches upon several fundamental questions
concerning application of the Act of State doctrine—qu ‘s-
tions that have been vigorously debated by lower courts
and commentators for years. In addressing these ques-
tions, amicus Republic of China urges the Court to avoid
resort to mechanical formulae, such as whether the for-
eign government’s act of awaraiag a contract was “com-
mercial” rather than “governmental,” or whether the
case requires inquiry into the “walidi*y” of the foreign
government’s acts or merely inte its “motivations.”
Rather, the Act of State dectrine is a ‘iexible, pragmatic
rule, whose scope should be determiiied by reference to the
purposes underlying the doctrine.
The Act of State doctrine reflects two fundamental
concerns. First, and most important from the point of
view of foreign nations, the Act of State doctrine is an
expression of the general principle of international com-
ity, which admonishes that nations should generally re-
spect and give effect to foreign governmental interests
and publie policies. Nonetheless, it is clear that U.S. pub-
lie policy must limit the extent to which U.S. courts defer
to foreign nations and their governmental interests. The
task of ascertaining U.S. policies implicates the second
indispensable principle underlying the Act of State doc-
trine—the U.S. constitutional principle of separation of
powers. This principle provides that it is for the Execu-
tive and Legislative Branches—not the Judiciary—-to
articulate the policy of the United States towards foreign
nations and to conduct foreign relations with other coun-
tries.
Informed by these underlying principles of comity and
separation of powers, this Court should apply the Act of
State doctrine to preclude adjudication of the claims pre-
sented in this case. The award of the foreign government
contract here wag a sovereign Act of State—despite its
arguably “commercial” nature—bhecause it was taken by
high foreign government officials, within the territory of
the foreign sovereign, pursuant to foreign laws and regu-
lations reflecting important public policies of the foreign
sovereign, and because the claim involved here challenges
the integrity and regularity of the internal decision-
making process of the foreign government. Similarly, the
trial court in this case is being asked to “sit in judgment”
4
on the foreign Act of State. Although the challenge to
the contract award in this case arguably does not extend
to the “validity” of the foreign sovereign act, the relief
requested would nonetheless be fundamentally inconsist-
ent with foreign public policy and sovereign interests. If
there were corruption in high levels of a foreign govern-
ment, it would be for that government—not for U.S. trial
courts—to address. On a subject that touches so sharply
on “national nerves,” foreign governments should be left
free to pursue the alleged corruption of their officials ac-
cording to their own procedures, at times of their own
choice, and in formats of their own selection.
Finally, there is no U.S. public policy that would over-
ride application of the Act of State doctrine in this case.
Because neither the Legislative nor the Executive Branch
has clearly articulated any U.S. public or foreign policy
requiring adjudication of this dispute, the Act of State
doctrine precludes U.S. courts from going forward.
I. THE ACT OF STATE DOCTRINE IS A WELL-
ESTABLISHED PRINCIPLE OF AMERICAN JU-
RISPRU DENCE.
Since the very inception of the United States, the sover-
eign acts of foreign nations have been challenged in U.S.
state and federal courts. Foreign nations have looked
primarily to the Act of State doctrine to limit the per-
missible scope of such challenges and to ensure that
appropriate judicial respect will be given to their inter-
ests and public policies.’
'In some circumstances, the doctrine of foreign sovereign im-
munity (now codified in the Foreign Sovereign Immunities Act,
28 U.S.C. $§ 1602 to 1611 (1982 & West Supp. 1989) (“FSIA”))
can also require U.S. courts to defer to the actions of foreign na-
tions. The FSIA differs fundamentally, however, from the Act of
State doctrine. Many of the FSIA’s protections apply based on the
status of the defendant as a foreign sovereign regardless of the
governmental character of the actions involved, whereas the Act of
State doctrine applies based on the governmental character of the
actions involved regardless of whether the action names a foreign
5
The Act of State doctrine is a fundamental and well-
established principle of U.S. jurisprudence. Long before
the founding of the United States, the Act of State doc-
trine had appeared in the English common law.’ And
soon after independence the doctrine was invoked by U.S.
courts in a series of cases, most notably The Schooner Ex-
change v. McFaddon.*
This Court stated the classic formulation of the Act of
State doctrine in its 1897 decision in Underhill v. Hernan-
dez: “Every sovereign State is bound to respect the in-
dependence of every other sovereign State, and the courts
of one country will not sit in judgment on the acts of the
sovereign as defendant. See G. Born & D. Westin, International
Civil Litigation in United States Courts 506-07 (1989); Restate-
ment (Third) of Foreign Relations Law § 443, Reporters’ Note 11
(1987).
2 The Act of State doctrine dates to at least 1673, when it was
invoked by an English court to give effect to a patent granted by
the King of Denmark. Blad’s Case, 3 Swans. 603, 36 Eng. Rep. 991
(P.C. 1673), aff'd sub nom., Blad v. Bamfield, 3 Swans. 604, 26
Eng. Rep. 992 (Ch. 1674). See Banco Nacional de Cuba v. Set-
hatino, 376 U.S. 398, 416 (1964). Later in Duke of Brunswick v.
King of Hanover, 6 Beav. 1 (1844), aff'd, 2 H.L. Cas. 1 (1848),
the House of Lords refused to consider a suit by the Duke of
Brunswick challenging an instrument, executed by King William IV
and confirmed by the German Diet, which placed him under the
guardianship of the King of Hanover. Among other things, the
House of Lords ieasoned: “if it is a sovereign act, then, whether
it be according to law or not according to law, we cannot inquire
unto it. ... [I)}f it be a matter of sovereign authority, we cannot
try the fact whether it be right or wrong.” Jd. at 21. See Underhill
v. Hernandez, 65 F. 577 (24 Cir. 1895), aff'd, 168 U.S. 250 (1897)
(relying on Deke of Brunswick as an Act of State decision). See
aleo Jones, Act of Foreign State in English Law: The Ghost Goes
East, 22 Va. J. Int’! L. 433, 427-40 (1982).
*11 US. (7 Cranch) 116, 146 (1812) (Marshall, C. J.). See
Ware v. Hylton, 3 US. (3 Dall.) 199, 230 (1796); Hudson r.
Grestier, 8 U.S. (4 Cranch) 293, 294 (1808); L’Invrincible, 14 U.S.
(1 Wheat.) 238, 253 (1816); The Santissima Trinidad, 20 U.S. (7
Wheat.) 283, 236 (1822).
6
government of another done within ity own territory.” ‘
This formulation has been repeatedly reaffirmed through-
out this century.’
More recently, in Banco Nacional de Cuba v. Sab-
batino,® the Court extended the Act of State doctrine to
preclude U.S. adjudication of claims that an expropria-
tion violated international law. Since Sabbatino, the
Court has grappled with proposed “exceptions” to che Act
of State doctrine for “purely commercial acts” by foreign
states and for cases where the U.S. government has ex-
pressly represented that adjudication will not interfere
with U.S. foreign relations.* Yet these cases have con-
tinued to affirm the vitality and fundamental importance
cf the basic Act of State doctrine.’
Quite apart from the extensive body of law articulated
by this Court, the state and lower federal courts have
issued literally hundreds of decisions on the Act of State
doctrine." Nor is the Act of State doctrine found in the
—_—_—
* 168 U.S. 250, 252 (1897).
* See, e.g., American Banana Co. v. United Fruit Co., 213 U.S.
347, 357-58 (1909); Oetjen v. Central Leather Co., 246 U.S. 297,
303 (1918); Ricaud v. American Metal Co., 246 U.S. 304, 309
(1918); United States v. Belmont, 301 U.S. 324, 327-29 (1937) ;
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 416 (1964);
First Nat'l City Bank v. Banco Nacional de Cuba, 406 U.S. 759,
763 (i972); Restatement (Third) of Foreign Relations Law § 443
(1987).
* 376 U.S. 398 (1964).
* See Alfrec’ Dunhill of London, Inc. v. Republic of Cuba, 425
U.S. 682 (1976).
* See First Nat'l City Bank v. Banco Nacional de Cuba, 406 U.S.
759.
* First Nat'l City Bank, 406 U.S. at 762-63, 765-67: First Nat’!
City Bank v. Banco Para El Comercio Exterior de Cuba, 462 US.
611, 622 n.11 (1983).
See Annotation, Modern Status of the Act of State Doctrine,
12 A.L.R. Fed. 707 (1972 & Supp. 1988).
7
jurisprudence of the United States alone. Specifically re-
lying on this Court’s decisions, a number of nations
around the world have recognized some form of the doc-
trine."'
Despite the long history and importance of the Act of
State doctrine, various commentators over the years have
urged reformulating or abolishing the doctrine.'* Some
have gone so far as to propose legislation to curtail the
doctrine substantially." All of these efforts have been
rebuffed. The American Law Institute recently reaffirmed
the classic statement of the doctrine,'* while Congress has
refused to adopt legislation aimed at overruling the Act
of State doctrine.'* And this Court has repeatedly reaf-
firmed the importance and viability of the basic Act of
State doctrine.
'' See Restatement (Third) of Foreign Relations Law § 443,
Reporters’ Note 12 (1987); Banco Nacional de Cuba v. Sabbatino,
376 U.S. at 421 n.21; 6 M. Whiteman, Digest of International Law
1-20 (1970).
‘2 B.g., Bazyler, Abolishing the Act of State Doctrine, 134 U. Pa.
L. Rev. 325 (1986); Halberstam, Sabbatino Resurrected: The Act.
of State Doctrine in the Revised Restatement of U.S. Foreign Re-
lations Law, 79 Am. J. Int'l L. 68 (1985); Mathias, Restructuring
the Act of State Doctrine: A Blueprint for Legislative Reform, 12
Law & Pol'y Int'l Bus. 369 (1980).
1 See S. 2633, 96th Cong., 2d Sess., 126 Cong. Rec. 9,452-53
(1980); S. 1434, 97th Cong., Ist Sess., 127 Cong. Rec. 12,959-60
(1981) (proposals by Senator Charles Mathias, Jr.) ; See Mathias,
Restructuring the Act of State Doctrine at 408-12; Bazyler,
Abolishing the Act of State Doctrine at 393-94; but see, Longo,
Limiting the Act of State Doctrine: A Legislative Initiative, 23
Va. J. Int'l L. 103 (1982)
* See Restatement (Third) of Foreign Relations Law § 443
(1987).
Congress instead recently enacted a statute establishing a
narrow exception to the Act of State doctrine, applicable in pro-
ceedings to enforce or confirm certain international arbitration
agreements or awards rendered against foreign states. See Act of
Nov. 16, 1988, Pub. L. No. 100-669, § 1, 102 Stat. 3969 (codified at
9 U.S.C. § 15 (1988) ).
&
Il. THE ACT OF STATE DOCTRINE IS BASED ON
THE DUAL PRINCIPLES OF INTERNATIONAL
COMITY AND SEPARATION OF POWERS.
Commentators and courts have suggested an array of
justifications for the Act of State doctrine. Some have
described the doctrine as a choice-of-forum device."” Oth-
ers have said it is a choice-of-law principle,” or a rule of
issue preclusion.'* And perhans most frequently, the Act
of State doctrine has been described as a principle of judi-
ciai abstention or restraint.'"" Although each of these
characterizations may be apt in a particular case,” none
' Octjen, 246 U.S. at 304.
'T Leigh & Sandler, Dunhill: Toward a Reconsideration of Sab-
hatino, 16 Va. J. Int’l L. 685, 715-16 (1976); Alfred Dunhill, 425
U.S. at 705 n.18; Industrial Inv. Dev. Corp. v. Mitaui & Co., 594
F.2d 48, 51 (5th Cir. 1979), cert. denied, 445 U.S. 903 (1980).
'* National Am. Corp. v. Federal Republic of Nigeria, 448 F.
Supp. 622, 640 n.30 (S.D.N.Y. 1978), aff'd, 597 F.2d 314 (2d Cir.
1979).
'E.g. Alfred Dunhill, 425 U.S. at 715 (Powell, J., concurring
in judgment); Hunt v. Mobil Oil Corp., 550 F.2d 68, 74 (2d Cir.),
cert. denied, 434 U.S. 984 (1977); Phoenix Canada Oil Co. v. Texaco
Inc., 560 F. Supp. 1272, 1381 n.27 (D. Del. 1983), aff'd in part and
rev'd in part, 842 F.2d 1466 (3d Cir.), cert. denied, 109 8. (Ct. 259
(1988).
°° Depending upon the circumstances in which it is invoked, the
Act of State doctrine can function as a choice-of-forum, choice-
of-law or abstention device. For example. in cases such as Oetjen
v. Central Leather Co., 246 U.S. at 304, the Act of State doctrine
was invoked to require a U.S. plaintiff to pursue his remedies in
foreign courts «r through diplomatic negotiations in which his
claim would be eponsored by the U.S. Government; this amounted
to a refusal by the U.S. court to apply either U.S. or foreign law.
In contrast, in Sabbatino the Act of State doctrine was invoked to
validate a foreign Act of State and thereby permit a foreign plain-
tiff to recover property from a U.S. defendant; this amounted to a
choice of foreign law that the U.S. court applied. See Restatement
‘Third) of Foreign Relations Law § 443, Reporters’ Note 1 (1987)
(“In most cases, the act of state doctrine may be seen as a special
adequately reflects the two fundamental bases for the Act
of State doctrine: the principle of international comity
and the principle of separation of powers.
A. The Principle of Internetional Comity.
The Act of State doctrine had its origins in the prin-
ciple of international comity. In The Schooner Exchange
v. McFaddon, Chief Justice Marshall traced doth the com-
mon law rule of sovereign immunity and the Act of State
doctrine to notions of comity among nations.*' Similarly,
this Court’s classic statement of the Act of State doctrine
in Underi ill v. Hernandez was foreshadowed by an ear-
lier state court decision where the court reasoned that:
“lwle think that, by the universal comity of nations
and the established rules of international law, the
courts of one country are bound to abstain from sit-
rule of conflict of laws.”); Restatement (Second) of Foreign Rela-
tions Law § 41, comment ¢ (1965).
The Act of State doctrine has also sometimes been tied to ~~
constitutional doctrine of “political question.” Ser, eg. The
Schooner Exchange v. MeFadden, 11 U.S. (7 Cranch) at 146 (“ques-
tions to which such [sovereign] wrongs give birth are rather ques-
tions of policy than of law, that they are for diplomatic, rather than
legal discussion”); Banco Nacional de Cuba v. Sabbatine, 37€ US.
at 428 (“the greater the degree of codification or consensus con-
cerning a particular area of international law, the more appropri-
ate it is for the judiciary to render decisions regarding it”). The
Act of State doctrine is, however, entirely distinct from the politi-
cal question doctrine. The latter is an Article III limitation on the
jurisdiction of the federal courts, which generally applies to a
different category of cases. See Goldwater v. Carter, 444 U.S. 996
(1979) (Powell, J.. concurring); Baker v. Carr, 369 U.S. 186
(1962).
“211 U.S. (7 Cranch) 116, 137 (“This perfect equality and ab-
solute independence of sovereigns, and this common interest im-
pelling them to mutual intercourse, and an interchange of good
offices with each other, have given rise to a class of cases in which
every sovereign is understood to [waive] the exercise of a part of
that complete exclusive territorial jurisdiction, which has been
stated to be the attribute of every nation.” ).
10
ting in judgment on the acts of another government
done within its own territory.” ”
And even more explicitly, in Oetjen v. Central Leather
Co., the Court explained that:
“The principle that the conduct of At y=
government cannot be successfully in the
courts of another . . . rests at last upon the highest
considerations of international comity and expedi-
ency. To permit the validity of the acts of one sov-
ereign state to be reexamined and perhaps condemned
by the courts of another would very certainly ‘im-
peril the amicable relations between governments,
and vex the peace of nations.’” ™
tions by this Court of the principle of international
comity. Thus, the comity ple has
determine the effect to be given by U.S. courts to foreign
judgments in routine private litigation.* Comity has
also served to define the extent to which U.S. courts must
respect foreign laws or regulatory frameworks when
ordering discovery of evidence located abroad,” or when
22 See Underhill, 168 U.S. at 252 and Hatch v. Baez, 14 N.Y.
Sup. Ct. (7 Hun.) 596, 599 ( App. Div. 1876).
2° 246 U.S. at 303-04 (quoting Underhill, 65 F. at 579 (emphasis
added)). Accord, Banco Nacional de Cuba v. Sabbatino, 376 U.S. at
438 (“the act of state doctrine . . . shares with the immunity doc-
trine a respect for sovereign states”); First Nat'l City Bank, 406
U.S. at 762 (Op. of Rehnquist, J.. for plurality) (“both the act of
state and sovereign immunity doctrines are judicially create? to
respective branches of the Federal Government”); id. at 765
(“}t'he act of state doctrine, like the doctrine of immunity for
foreign sovereigns, has its rvots, not in the Constitution, but in the
notion of comity between independent sovereigns.”): American
Banana Co. v. United Fruit Co., 213 U.S. 347, 352 (1909).
* Hilton v. Guyot, 159 U.S. 113 (1895).
2 Societe Nationale Industrielle Aerospatiale v. United States
District Court, 482 U.S. 522 (1987).
11
applying U.S. substantive laws extraterritorially.” And
comity has been invoked in determining when U.S. courts
should give effect to agreements for the resolution of dis-
putes by foreign courts” or international arbitration
tribunals.”
The doctrine of comity is not merely a vague, precatory
notion of international courtesy and good-will. Instead,
in numerous contexts, the principle of international com-
own citizens... .”” As this Court has repeatedly held,
comity therefore requires a sensitive analysis in
lar cases of (1) foreign sovereign interests and public
policies; (2) U.S. sovereign interests and public policies;
and (3) the goal of an efficient and developed interna-
tional system.” Applying this analysis, U.S. courts have
2 Lauritzen v. Larsen, 345 U.S. 571, 582 (1953) (“acceptance by
common consent of civilized communities of rules designed to foster
amicable and workable commercial relations”; “considerations of
comity, reciprocity and long-range interest”); Romero v. Inter-
national Terminal Operating Co., 358 U.S. 354, 383 (1959).
27 Bremen v. Zapata Off-Shore, 407 U.S. 1, 9, 13-14 (1972).
28 Mitsubishi Motors v. Soler Chrysler-Plymouth, Inc., 473 U.S.
614, 629 (1985) (“concerns of international comity, respect for
the capacities of foreign and transnational tribunals and sensitivity
to the need of the international commercial system”).
* Hilton v. Guyot, 159 U.S. at 164. See also J. Story, Com-
mentaries on the Conflict of Laws §§ 33-38 (1834).
% See Aerospatiale, 482 U.S. at 543-44; Hilton v. Guyot, 159 US.
at 163-64 (“respective interests of the foreign nation and the re-
nation”): Remero, 352 U.S. at 383 (“the interacting in-
terests of the United States and of foreign countries”); Lawritzen
v. Larsen, 245 U.S. at 582 (“ascertaining and valuing points of
contact between the transaction and the states or government
whose competing laws are involved”.
12
frequently concluded that “international duty and con-
venience” cal] for respecting and giving effect to foreign
governmental interests and public policies." The Act of
State doctrine—which applies to peculiarly sovereign and
sensitive acts by foreign states, consummated within
their own territory—is the most emphatic example of this
deference.
B. The Separation of Powers Doctrine.
Foreign nations would of course prefer that the Act of
State doctrine begin and end with deference to their
policies: The United States would respect the govern-
mental! interests and puld policies of foreign states in
every case, and U.S. courts would never adjudicate claims
that called those interests into question. As most foreign
states acknowledge, however, there are occasions in which
important U.S. interests and public policies may require
a different result.
Responsibility for articulating U.S. public policies in
the international context lies with Congress and the Pres-
ident. This Court has repeatedly recognized the pe-
culiarly broad authority of these political branches in
the foreign relations and foreign commerce fields. Thus,
the Court has acknowledged “the very delicate, plenary
and exclusive power of the President as the sole organ
of the federal government in the field of foreign rela-
tions.” “ And it has described the constitutional powers
of the Legislative branch over foreign commerce in com-
parably broad terms.”
™ See notes 24-28 ewpra. See also G. Born & D. Westin, Interna-
tional Civil Litigation in United States Courts 14-18 (1989).
2 United States v. Curtiss-Wright Export Corp., 299 U.S. 304,
220 (1936).
" See Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434,
448-49 (1979): Dames & Moore v. Regan, 453 U.S. 654, 669 (1981).
13
The broad powers of the political branches in the inter-
national context are accompanied by a corresponding re-
luectance by U.S. courts to enter into areas where their
rulings could interfere with the conduct of U.S. foreign
relations. This reluctance has been repeatedly cited as
one of the primary reasons for the Act of State doctrine.
Thus, in Ocetjen v. Central Leather Co., this Court ob-
served that
“{t}he conduct of the foreign relations of our Gov-
ernment is committed by the Constitution to the
Executive and Legislative—‘the political’—Depart-
ments of the Government, and the propriety of what
may be done in the exercise of this political power is
not subject to judicial inquiry or decision.” ™
Even more explicitly, Justice Harlan explained in Banco
Nacional de Cuba v. Sabbatino that, although “the Con-
stitution does not require the act of state doctrine,” the
doctrine nevertheless has “ ‘constitutional’ underpinnings.
It arises out of the basic relationships between branches
of government in a system of separation of powers.” “
“246 U.S. at 302. Similarly, in The Schooner Exchange v.
McFaddon, 11 U.S. (7 Cranch) at 146, Chief Justice Marshal! ex-
plained that one of the reasons for deferring to the acts of foreign
sovereigns was that “the sovereign power of the nation is alone
competent to avenge wrongs committed by a sovereign.”
376 U.S. at 423. Accord, First Nat'l City Bank, 406 U.S. at 762
(Op. Rehnquist, J., for plurality) (“both the act of state and sover-
eign immunity doctrines are judicially created to effectuate general
notions of comity among nations and among the respective branches
of the Federal Government”); id. at 765 (the act of state doc-
trine “is also buttressed by judicial deference to the exclusive power
of the Executive over conduct of relations with other sovereign
powers and the power of the Senate tc advise and consent on the
making of treaties”).
Because it is a rule with “constitutional underpinnings” centering
around concerns over U.S. relations with foreign sovereigns, the
Act of State doctrine implicates powerful and uniquely federal in-
terests. See Hines v. Davidowitz, 312 U.S. 52 (1941); Japan Line
Lid. v. County of Los Angeles, 441 U.S. 434 (1979); First National
14
In short, the Act of State doctrine is born of the
confluence of the two basic principles of comity among
nations and separation of powers. The former principle
calls on each nation to respect and give effect to the
sovereign actions of other nations and thereby avoid con-
flict and confrontation. The latter principle specifies that,
if the United States is to be involved in international con-
flict, that conflict should come through the articulated
public policy decisions of the President and Congress—not
through actions of the courts. Together, the two princi-
ples require generally that U.S. courts respect and give
effect to foreign government interests and public policies
except where the political branches have clearly and ex-
pressly articulated a public policy to the contrary.
Ill. THE ACT OF STATE DOCTRINE IS A FLEXIBLE
RULE WHOSE APPLICABILITY MUST DEPEND
ON THE NATURE OF THE FOREIGN SOVEREIGN
ACT AND THE CHALLENGE BEING MADE TO
THAT ACT.
The principles giving rise to the Act of State doctrine
determine its scope and application in particular cases.
These principles require that the Act of State doctrine
remain a flexible rule, sensitive to the many varying
exigencies and circumstances of international life, that
cannot be reduced to wooden formulae.
City Bank v. Banco Para El Commercio Exterior de Cuba, 462 US.
611 (1983); Boyle v. United Technologies Corp., 108 8. Ct. 2510,
2515-16 (1988). The Act of State doctrine is, therefore, a uniform
rule of federal common law. See Banco Nacional de Cuba v. Sab-
batino, 376 U.S. at 425 (“an issue concerned with a basic choice
regarding the competence and function of the Judiciary and the
National Executive in ordering our relationships with other mem-
bers of the international community must be treated exclusively
as an aspect of federal law”) (emphasis added); Republic of Iraq
v. Firet Nat'l City Bank, 353 F.2d 47, 50 (2d Cir. 1965), cert.
denied, 382 U.S. 1027 (1966); Republic of the Philippines v. Marcos,
806 F.2d 344 (2d Cir. 1986), cert. denied, 107 8. Ct. 1597 (1987).
15
Any rule based on the comity principle must depend
upon a careful and flexible assessment of U.S. public poli-
cies, foreign public policies, and the needs of the interna-
tional system. For example, in Aerospatiale the Court
explained that the doctrine of international comity re-
quired a “delicate task of adjudication” that encompassed
a “particularized analysis of the respective interests” of
the U.S. and relevant foreign sovereigns.” And as Jus-
tice Joseph Story—this country’s preeminent commentator
on comity—explained: “comity is, and ever must be, un-
certain. . . . it must necessarily depend on a variety of
circumstances, which cannot be reduced to any certain
ae... *
The Act of State doctrine also requires the fleaibility
to respond to many different types of foreign sovereign
actions. These actions can take any of a wide variety
of forms,” expressing a range of foreign sovereign inter-
ests of differing intensity and importance.” In the early
© 482 U.S. at 543-44, 546.
57 J. Story, Commentaries on the Conflict of Laws § 28 (1884).
Or, in the Court’s words in Romero ». International Terminal Co.,
358 U.S. at 383, comity does “not depend upon a mechanical ap-
plication of a doctrine like that of lex doci delicti commissi.”
Just as comity has been understood as prescribing a necessarily
flexible analysis, the separation of powers doctrine generally calls
for a case-by-case, pragmatic analysis. E.g., Morrison v. Olson, 108
S. Ct. 2597, 2620-22 (1988). This is particularly true in the field
of foreign relations and foreign commerce powers. E.g., Dames &
Moore v. Regan, 453 U.S. 654, 669 (1981) (“spectrum [of Executive
power] running from explicit congressional authorization to explicit
congressional prohibition” ).
"* See Salaman v. Secretary of State of India, {1906} 1 K.B. 613,
640 (“Acts of state are not all of one kind: their nature and con-
sequences may differ in an infinite variety of ways... .”).
™” See Sabbatino, 376 U.S. at 428 (“It is also evident that some
aspects of international law touch much more sharply on national
nerves than do others; the less important the implications of an
issue are for our foreign relations, the weaker the justification for
16
days of the Nation, this Court typically applied the
Act of State doctrine to the seizures of ships by other
nations during times of war or by colonists fighting for
independence from European powers.*’ In Underhill v.
Hernandez, the issue arose out of the imprisonment of
an American in Venezuela by rebel forces during a civil
war ultimately won by the rebels.’' And in this century,
the Court has most often dealt with tue Act of State doc-
trine in sorting out the complicated consequences that
have flowed from confiscation of property by foreign
regimes.*? At the same time, U.S. judicial proceedings
can implicate foreign sovereign acts in many different
ways, ranging from direct challenges to the validity of
foreign acts to mere consideration of foreign sovereign
acts as contextual background.”
Because foreign Acts of State can arise in such widely
varying circumstances, this Court has expressly declined
exclusivity in the political branches.”); Restatement (Second) of
Foreign Relations Law § 41, comment d (1965).
4 See The Santissima Trinidad, supra; L'Invincible, supra; Hud-
son v. Guestier, supra. In invoking the doctrine, the Court made
clear that it was important to preserve a U.S. policy of neutrality
in the face of disputes among other nations and their colonies. See,
e.g., The Santissima Trinidad, supra.
41 168 U.S. at 250-52.
42 See, e.g., Banco Nacional de Cuba v. Sabbatino, supra; First
National City Bank, supra. In addition to the situations thus far
addressed by this Court, the state and lower federal courts have
considered the doctrine in circumstances ranging from imposition
of foreign exchange contiols by Less Developed Countries to diverse
private claims based on allegations of wrongdoing by high foreign
government officials. See, e.g., Braka v. Bancomer, S.N.C., 762 F.2d
292 (2d Cir. 1985); Callejo v. Bancomer, S.A., 764 F.2d 1101 (5th
Cir. 1985): Republic of Philippines v. Marcos, 806 F.2d 344 (2d
Cir. 1986). cert. denied, 107 S. Ct. 1597 (1987); Republie of Philip-
pines v. Marcos, 818 F.2d 1473 (1987), vacated, 862 F.2d 1355 (9th
Cir. 1988) (en bane); Sharon v. Time, Inc., 599 F. Supp. 538
(S.D.N.Y. 1984).
** See infra pp. 22-23.
7
17
to “lay[|] down or reaffinn{] an inflexible and all-encom-
passing rule” governing the Act of State doctrine.** In-
stead, it has specifically required careful examination of
the “balance of relevant considerations” in particular
categories of cases.** Similarly, lower federal courts have
repeatedly emphasize4 the flexible, pragmatic character of
the Act of State doctrine.”
IV. THE ACT OF STATE DOCTRINE PRECLUDES
ADJUDICATION OF THE PRESENT DISPUTE.
To say that the Act of State doctrine is flexible and
requires consideration of a wide range of factors is not
to say that it is without structure. On the contrary, two
basic and closely related requirements must be satisfied
before the doctrine will be applied: (a) there must be an
“Act of State”; and (b) adjudicating a dispute must re-
quire the U.S. court to “sit in judgment” on that Act of
State. Both of these prerequisites flow directly from the
comity and separation of powers principles that give rise
to the Act of State doctrine. Applying these two prongs
of the doctrine to the present case, we submit that this
action should be dismissed on Act of State grounds be-
cause it would require the U.S. courts to “sit in judg-
ment” on a foreign “Act of State.”’
A. This Foreign Government Contract Award Was An
“Act of State.”
The first question to be addressed in deciding whether
the Act of State doctrine applies to the present case is
** Sabbatino, 376 U.S. at 428.
“Id. Accord, First Nat'l City Bank, 406 U.S. at 774 (Powell, J.,
concurring in judgment) (“The balancing of interests, recognized
as appropriate by Sabbatino, requires a careful examination of the
facts in each case and of the position, if any, taken by the political
branches of government.” ).
“E.g., DeRoburt v. Gannett Co., 733 F.2d 701, 708 (9th Circ.
1984), cert. denied, 469 U.S. 1159 (1985); Compania de Gas de
Nuevo Laredo, S.A. v. Enter, Inc., 686 F.2d 322, 325-26 (5th Cir.
1982), cert. denied, 460 U.S. 1041 (1983); JAM v. OPEC, 649 F.2d
1354, 1260 (9th Cir. 1981), cert. denied, 454 U.S. 1163 (1982).
18
whether the relevant action of the foreign sovereign—the
award of a government contract—was an “Act of State.”
As explained above, this Court has found a wide range of
actions by foreign officials to be Acts of State. None*he-
less, it is abundantly clear that not all actions taken by
foreign government officials are ipso facto Acts of State,
entitled to the substantial deference afforded by the Act
of State doctrine.*
In Alfred Dunhill of London, Inc. v. Republic of Cuba,
the Court found that the refusal of intervenors appointed
by the Cuban goverment to repay U.S. importers
amounts they had been mistakenly paid was not an Act
of State because there was no evidence showing that the
intervenors had purported to exercise governmental
power. 425 U.S. at 694. According to the Court, for the
action of a foreign sovereign to be an Act of State, the
“eonduct in question [must have been] the public act of
those with authority to exercise sovereign powers” ™
based on “stacute[s], decree{s], order[{s], [and] resolu-
tion|s]” of the foreign state.”
47 Compare Remington Rand Corp. v. Business Sys., Inc., 830 F.2d
1260, 1265 (3d Cir. 1987) (acts of foreign debtor’s trustees are
not acts of foreign sovereigns); Ramirez de Arellano v. Wein-
berger, 145 F.2d 1500, 1533-36 (D.C. Cir. 1984), vacated, 471 U.S.
1113 (1985) (presidential expropriation decree is not an Act of
State until property is actually seized), with DeRoburt v. Gannett
Co., 733 F.2d 701 (9th Cir. 1984), cert. denied, 469 U.S 1159
(1985) (Act of State doctrine potentially is applicable to a.legedly
illegal loan to foreign head of state); General Aircraft Corp. v.
Air America, Inc., 482 F. Supp. 3 (D.D.C. 1979) (military procure-
ment decision is Act of State).
48 425 U.S. at 693 (emphasis added).
#9 Jd. at 694. Similarly, the ALI’s recent Restatement (Third) of
Foreign Relations Law § 443 (1987) expressly provides that the
Act of State doctzrine generally precludes U.S. courts from “ex-
amining the validity of a taking by a foreign state of property
within its own territory, or from sitting in judgment on other acts
of a governmental character done by a foreign state within its own
territory and applicable there” (emphasis added).
19
Whether a given action of a foreign government offi-
cial is entitled to treatment as an Act of State must be
determined, not by labels, but by consideration of the ex-
tent to which the action expresses important sovereign
interests or public policies of a foreign state. Various
factors are relevant to this analysis, tut none is, in
and of itself, determinative. Most important is the ex-
tent to which foreign laws—whether constitutional pro-
visions, statutes, administrative measures, executive de-
crees or judicial judgments—themselves purport to ex-
press a sovereign or public interest.” Also relevant is the
degree to which an action implicates the core purposes
and functions of independent nation-states—such as en-
suring national defense, administering a system of pub-
lie law and justice, organizing local political and govern-
mental structures, providing basic social services and pro-
tections, defining national territory, and regulating pri-
vate activities.*' In this connection, one significant factor
is the extent to which private individuals can and ordi-
narily do independently undertake the actions in ques-
tion.” Another relevant consideration is the scope and
See Alfred Dunhill, 425 U.S. at 694-95 ( referring to foreign
law for evidence of sovereign interest or public policy); Restate-
ment (Third) of Foreign Relations Law § 443, comment i (1987)
(“An official pronouncement by a foreign government describing a
certain act as governmental is ordinarily conclusive evidence of its
official character.”’ ).
*! Alfred Dunhill, 425 U.S. at 693-95; Restatement (Second) of
Foreign Relations Law § 41, comment d (1965) (an Act of State
“involves the public interests of a state as a state, as distinct from
its interest ir providing the means of adjudicating disputes” ).
In Alfred Dunhill, a plurality of this Court concluded that the
Act of State doctrine did not extend to “the repudiation of a purely
commercial obligation.” 425 U.S. at 695. The “commercial ex-
ception” recognized by the plurality opinion was expressly limited
to certain “purely commercial” acts, and is entirely consistent with
this Court’s more general approach of defining “Act of State” by
20
degree of authority of the foreign governmental official,
or agent of the foreign state,** whose actions are subject
to scrutiny.*' Similarly, the importance and political sen-
sitivity of any applicable governmental interests or pub-
lie policies are also a pertinent consideration.** And fi-
nally, a foreign nation’s action will more likely be treated
as an Act of State if it can be said to have been taken
within the nation’s own territory, rather than in the
United States or in a foreign territory.”
reference to a variety of factors. See also IAM v. OPEC, 649 F.2d
1354, 1360 (9th Cir. 1981), cert. denied, 454 U.S. 1163 (1982).
53 Acts of high foreign governmental officials are more likely than
those of lower officials to constitute Acts of State. Mannington
Mills Inc. v. Congoleum Corp., 595 F.2d 1287, 1293-94 (3d Cir.
1979) (excluding “ministerial” acts from Act of State doctrine).
Acts of a foreign governmental official are more likely to be treated
as Acts of State than are acts of private entities carrying out
governmental directives. Nonetheless, where a private entity en-
gages in conduct in a foreign state pursuant to foreign sovereign
compulsion, a variation of the Act of State doctrine will often be
applicable. See Interamerican Refining Corp. v. Texaco Maracaibo,
Inc., 307 F. Supp. 1291 (D. Del. 1970). Similarly, there may be
circumstances in which a private entity acts as an arm of a foreign
state, thereby providing its actions with Act of State protection.
Cf. Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371 (5th
Cir. 1980). On the other hand, where a private entity engages in
purely private misconduct without foreign sovereign compulsion,
approval or complicity, the Act of State doctrine is inapplicable.
This was the result in Continental Ore Co. v. Union Carbide &
Carbon Corp., 370 U.S. 690, 706 (1962) (“there is no indication
that the Controller or any other official within the structure of the
Canadian Government approved or would have approved of joint
efforts to monopolize the production and sale of vanadium or di-
rected that purchases from Continental be stopped”).
54 See, e.g., Mannington Mills, 595 F.2d at 1293-94; Alfred
Dunhill, 425 U.S. at 691 (actions by intervenors and statements by
counsel are not Acts of State).
55 See note 39 supra.
56 In its classic formulation, the Act of State doctrine was ap-
plicable to acts of foreign states consummated within their own
territory. See Underhill, 168 U.S. at 252; Sabbatino, 376 U.S. at
21
Applying these considerations to the present case, the
activities of the foreign government here were clearly
“Acts of State.” The actions giving rise to this case oc-
curred within the foreign state’s territory and were taken
by high-level government officials. Moreover, the actions
were taken as part of a regularized governmental process
that reflects important public policies that have in no way
been repudiated by the foreign government. Most im-
portant of all, however, is the fact that the respondent’s
allegations in this case do not question the simple fact of
a governmental contract award, but instead challenge the
integrity and regularity of the internal governmental
decision-making process that led to the granting of the
contract. Regulating this sort of internal decision-making
process is plainly at the heart of national sovereignty
and implicates foreign public policies that bear as sharply
on “national nerves” as any issue does.
B. Adjudicating Whether the Award of the Foreign
Government Contract Was the Result of Bribery
Would Require the U.S. Court To “Sit in Judgment”
on the Foreign “Act of State.”
Once this case has been found to involve an Act of
State, it becomes necessary to ascertain whether litigating
the action would violate the Act of State doctrine. As this
Court explained in Underhill v. Hernandez, a U.S. court
may not “sit in judgment” on a foreign Act of State.’
413-19; Restatement (Third) of Foreign Relations Law § 443 and
comment b and Reporters’ Note 4 (1987). Lower U.S. courts have
denied Act of State treatment to foreign sovereign actions within
the United States, Republic of Iraq v. First Nat'l City Bank, 353
F.2d 47 (2d Cir. 1965), cert. denied, 382 U.S. 1027 (1966); Allied
Bank Int'l v. Banco Credito Agricola de Cartago, 757 F.2d 516
(2d Cir.), cert. dismissed, 473 U.S. 934 (1985), although some
courts have held that even acts within the United States will be
given effect if they are consistent with U.S. policy. Jd. See also
Drexel Burnham Lambert Group Inc. v. Galadari, T777 F.2d 877
(2d Cir. 1985).
57 Underhill, 168 U.S. at 252. See also Hatch v. Baez, 14 N.Y.
Sup. Ct. at 599 (“courts of one country are bound to abstain from
22
The same formulation has been repeated in this Court’s
subsequent decisions * and was recently adopted by § 443
of the ALI’s Restatement (Third) of Foreign Relations
Law (1987).°°
U.S. courts have considered whether they would be re-
quired to “sit in judgment” on a foreign Act of State in
a wide range of circumstances. Often private litigants
have sought damages” or injunctive relief" directly
against foreign sovereigns for their allegedly unlawful
Acts of State. In other cases, the complaint of one pri-
vate party against another has rested upon the alleged
invalidity or unlawfulness of a foreign Act of State.”
And other actions have alleged the unlawfulness of ac-
tivities by private entities that were compelled by foreign
sovereigns “ or were taken in the context of pervasive
foreign governmental regulations or actions.“ Sometimes
the Act of State doctrine has been invoked in cases where
the private party is alleged to have violated U.S. law by
improperly procuring foreign sovereign acts through
sitting in judgment on the acts of another government done within
its own territory.”).
58 See note 5 supra.
59 Restatement (Third) of Foreign Relations Law § 443 (1987)
(“sitting in judgment on other acts of a governmental character”).
60 Underhill v. Hernandez, supra.
61 JAM v. OPEC, supra.
62 Oetjen v. Central Leather Co., supra; Ricaud v. American
Metal Co., supra.
63 Interamerican Reyining Co. v. Texaco Maracaibo, Inc., supra.
64 Industrial Inv. Dev. Corp. v. Mitsui & Co., 594 F.2d 48 (5th
Cir. 1979), cert. denied, 445 U.S. 903 (1980); O.N.E. Shipping,
Ltd. v. Flota Mercante Grancolombiana, S.A., 830 F.2d 449 (2d
Cir. 1987), cert. denied, 109 S. Ct. 303 (1988).
23
fraud,” anticompetitive conduct,” or bribery.’ Finally,
U.S. courts have sometimes been asked to decide whether
high officials of foreign governments have taken actions
that would be illegal or politically embarrassing abroad.”
Whether a U.S. court will be required to “sit in judg-
ment” on a foreign Act of State in these very different
situations cannot be resolved by any simple formula. In-
stead, the inquiry goes to the heart of the Act of State
doctrine and the principles of comity and separation of
powers that underlie it. To apply the Act of State doc-
trine, a court must evaluate the extent to which ruling
on the claim before it would undermine or conflict with
important governmental interests or public policies of a
foreign sovereign.
One important consideration in this analysis is whether
the foreign state, or its officials, are defendants in the
suit. If so, a U.S. court’s inquiry is particularly likely
to result in its “sitting in judgment” on a foreign Act of
State.” Another important, but by no means conclusive,
consideration is whether a U.S. court would be directly or
indirectly required to hold a foreign Act of State unlaw-
ful or invalid.” If a U.S. court is required to adjudicate
*® See Mannington Mills, 595 F.2d at 1292-93.
%6 See Hunt v. Mobil Oil Corp., 550 F.2d 68, 77 (2d Cir.), cert.
denied, 434 U.S. 984 (1977).
*? See Clayco Petroleum Corp. v. Occidental Petroleum Corp., 712
F.2d 404 (9th Cir. 1983), cert. denied, 464 U.S. 1040 (1984):
Environmental Tectonics v. W.S. Kirkpatrick, Inc., 847 F.2d 1052
(3d Cir. 1988), cert. granted, 57 U.S.L.W. 3841 (1989).
% See DeRoburt v. Gannett Co., 733 F.2d 701 (foreign President
alleged to have secretly supported and made arguably illegal loans
to separatist elements in neighboring country).
% See, ¢.g., Underhill v. Hernandez, supra. In contrast, where a
foreign state itself brings an action in U.S. courts, the Act of State
doctrine will virtually never be applicable to bar the foreign state’s
complaint. See Banco Nacional de Cuba v. Sabbatino, supra,
7 See Sabbatino, supra.
24
the validity of a foreign Act of State, it is also important
to consider whether this holding would be based on U.S.,
international, or foreign law. United States courts are
particularly reluctant to consider whether a foreign Act
of State violates the laws of the foreign state."
Even if a U.S. court would not be required to rule on
the technical legality or validity of a foreign Act of State,
an important consideration is the extent to which the
action would inquire into the fairness, honestly, integrity,
or motivations of foreign governmental processes and offi-
cials.* When U.S. courts issue findings, or when U.S.
litigants attempt to take discovery, on these and other
matters that are of overriding concern to foreign states,
they “sit in judgment” on foreign sovereign acts in the
71 See Banco de Espana v. Federal Reserve Bank, 114 F.2d 438,
443 (2d Cir. 1940) (“the courts of this country will not examine
the acts of a foreign sovereign within its own borders, in order to
determine whether or not those acts were legal under the municipal
law of the foreign state.”); Earn Line S.S. Co. v. Sutherland S.S.
Co., 254 F. 126, 129 (S.D.N.Y. 1918), aff'd sub nom., The Claveresk,
264 F. 276 (2d Cir. 1920); Duke of Brunswick v. King of Hanover,
6 Beav. 1 (1984), aff'd, 2 H.L. Cas. 1 (1848) (English courts will
not inquire whether sovereign act “was contrary to the laws of
Hanover and Brunswick”); American Banara Co. v. United Fruit
Co., 213 U.S. 347, 358 (1909). See also Restatement (Third) of
Foreign Relations Law § 443, comment d (1987); Restatement
(Second) of Foreign Relations Law § 41, comment f (1965) (“An
agency of an acting state is in a better position than the courts of
another state to decide whether a particular action is valid under
its law. Alse, reexamination elsewhere could be regarded a lack
ef respect for the institutions of the acting state.’’).
72 The Restatement (Third) of Foreign Relations Law § 443,
comment c (1988) (“probe the motives’), takes the position that
inquiring into the motivations or purpose of foreign Acts of State
may be precluded by the Act of State doctrine. Although the Re-
statement (Second) of Foreign Relations Law § 41 (1965) did not
expressly include inquiry into motivations within its black-letter
statement of the Act of State doctrine, the relevant comments sug-
gest that such an inquiry could well trigger the doctrine. /d. at
comments c & f.
25
most elementary fashion.” And, finally, determining
whether an action would result in “sitting in judgment”
on a foreign Act of State requires carefu! analysis of the
plaintiff’s claims and the asserted foreign Act of State.
There will be circumstances in which adjudication of the
plaintiff’s claim will not require questioning the validity,
legality, integrity or fairness of foreign sovereign acts—
even when those acts form a part of the disputed trans-
action”
In Zscherni, v. Miller, 389 U.S. 429 (1968 , this Court held
that the administration of certain state probate statutes by state
courts unconstitutionally intruded upon the foreign relations au-
thority of the federal government. The Court’s decision rested prin-
cipally upon the fact that the state courts had “launched inquiries”
into whether certain rights were “merely dispensations turning
upon the whim or caprice of [foreign] government officials,” id. at
434, into “whether the representation[s] of consuls, ambassadors
and other representatives of foreign nations [are] credible or made
in good faith,” id., and into “the administration of foreign law
[and] the credibility of foreign diplomatic statements,” id. at 442.
There is no reason that similar inquiries by federal courts into the
credibility and motivations of foreign governmenta! officials would
be less objectionable than those held unconstitutional in Zschernig.
Even in the purely domestic context, this Court has counselled
against the examination of the motivations or purposes of govern-
mental officials in most circumstances. See United States v. Morgan,
313 U.S. 409, 422 (1941); United States v. O’Brien, 391 U.S. 367,
383-84 (1968); Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402, 416 (1971).
™ For example, in United States v. Sisal Sales Corp., 274 U.S.
268, 274-76 (1927), private defendants violated the antitrust laws
by buying large quantities of sisal, id. at 274, making large loans
to facilitate additional sisal purchases, id., and entering into con-
tracts with various private entities to maintain close control over
the distribution and sale of sisal, id. Although one part of this con-
spiracy was the defendants’ successful efforts to obtain discrimina-
tory legislation in Mexico, id. at 276, this Court emphasized that
the defendants had independently engaged in conduct violative of the
antitrust laws and that the plaintiff did not complain “merely of
something done by another government at the instigation of private
parties.” /d.
26
The Act of State doctrine precludes judicial considera-
tion of the present case because it would have a U.S. court
“sit in judgment” on a foreign Act of State. The re-
spondent’s lawsuit would require a U.S. court to deter-
mine whether a foreign government awarded a contract
because high government officials were unlawfully bribed.
No foreign government or its officials are parties to this
action, and it may theoretically be correct that respond-
ent’s suit does not require a ruling that the foreign gov-
ernment contract is invalid.“ Nonetheless, where a U.S.
court is asked to decide publicly whether high foreign
governmental officials accepted bribes—conduct that would
violate foreign law—the actions requested of the U.S.
court are necessarily inconsistent with foreign sovereign
interests and public policy. The resolution of such ques-
tions is most appropriately confided to the foreign gov-
ernment that is involved, according to its own procedures,
and at a time and in a format of its own choice. It is,
after all, the foreign government that has the greatest
sovereign interest in the detection and punishment of
corruption by its own officials and with selecting the ap-
propriate means for taking such steps. And, of course,
the judgment that respondent seeks from the U.S. courts
would publicly embarrass the foreign government about
an issue-—charges of official corruption—which necessar-
ily touches on sensitive “national nerves.”
C. The Political Branches Have Not Clearly Articu-
lated any U.S. Public Policy Requiring Adjudica-
tion of this Dispute.
Because the Act of State doctrine is based on separa-
tion of powers principles as well as comity, there are
eases in which U.S. policies require that the courts go
forward even though doing so will result in their “sit-
ting in judgment” on foreign Acts of State. For this to
™ There would, of course, be no doubt that the Act of State
doctrine would apply to this action if the foreign state or its officials
were named as defendants. See Underhill v. Hernandez, supra,
27
happen, however, the U.S. political branches must have
clearly articulated a public policy requiring the juc*~'*ry
to “sit in judgment” on particular categories of f gn
sovereign acts. For example, the so-called “Hickenlooper
Amendment” * removes a class of cases from the Act of
State doctrine, while recent legislation dealing with in-
ternational arbitration accomplishes a similar result.”
Likewise, the so-called “treaty exception” to the Act of
State doctrine requires judicial consideration of cases
where the Senate and President have clearly expressed
a public policy on a particular issue.”
Some members of this Court, as well as some lower
federal courts, have concluded that the Act of State doc-
trine should not apply, even in the absence of a statute
or treaty, if the Executive Branch publicly and expressly
states that adjudication in U.S. courts will not be in-
consistent with U.S. foreign policy.“’ This approach is
76 22 U.S.C. § 2870(e) (2) (1982).
779 U.S.C. § 15 (1988).
™ Banco Nacional de Cuba v. Sabbatino, 376 U.S. at 428 (Act
of State doctrine not applicable where there is “a treaty or other
unambiguous agreement regarding controlling legal principles”).
See Kalamazoo Spice Extraction Co. v. Government of Socialist
Ethiopia, 729 F.2d 422 (6th Cir. 1984); American Int'l Group, Inc.
v. Islamic Republic of Iran, 493 F. Supp. 522, 525 (D.D.C. 1980),
vacated on other grounds, 657 F.2d 430 (D.C. Cir. 1981).
Conversely, there may also be situations in which U.S. public
policy reinforces a result counselled by principles of comity. In
Sabbatino itself, for example, U.S. public policy, as expressed in
ongoing bilateral and multilateral diplomatic efforts by the Execu-
tive, see 376 U.S. at 431-34, counselled for application of the Act
of State doctrine.
™ See Williams v. Curtiss-Wright Corp., 694 F.2d 300, 303 (3d
Cir. 1982) (dictum); Occidental of Umm Al Qaywayn, Inc. v. A
Certain Cargo of Petroleum, 577 F.2d 1196, 1204 (5th Cir. 1978),
cert. denied, 442 U.S. 928 (1979); Beck v. Manufacturers Hanover
Trust Co., 125 Mise. 2d 771, 481 N.Y.S.2d 211 (Sup. Ct. 1984)
(dictum); First Nat'l City Bank, 406 U.S. at 768 (Op. of Rehn-
quist, J.).
28
commonly referred to as the “Bernstein exception,” after
the lower court decision in which it was first asserted.“
The Bernstein exception has been the subject of some con-
troversy,*' however, because it could involve the Executive
Branch in the very sort of ad hoc and unpredictabl« de-
cisionmaking with respect to foreign sovereigns that the
political branches sought to avoid when Congress enacted
the Foreign Sovereign Immunities Act.”
In the present case, the U.S. political branches have
not clearly articulated a public policy that U.S. courts
should hear this sort of private litigation concerning for-
eign official corruption. If anything, U.S. policy is to the
contrary, for Congress specifically rejected a proposal
80 Bernstein v. N.V. Nederlandsche-Amerikaansche, 210 F.2d 375
(2d Cir. 1954). See G. Born & D. Westin, International Civil
Litigation in United States Courts 517-27 (1989).
‘! See First Nat'l City Bank, 406 U.S. at 773 (Op. of Douglas, J.,
concurring in result) ; id. (Op. of Powell, J., concurring in result) ;
id. at 777 (Op. of Brennan, J., dissenting); Braniff Airways, Ine.
». CAB, 581 F.2d 846, 851 & n.18 (D.C. Cir. 1978) (dictum) ; Hunt
v. Coastal States Gas Producing Co., 570 S.W.2d 503, 507 (Tex. Civ.
App. 1978), aff'd, 583 S.W.2d 322 (Tex.), cert. denied, 444 U.S.
992 (1979).
82 Cardozo, Judicial Deference to State Department Suggestions:
Recognition of Prerogative or Abdication to Usurper?, 48 Corn,
L.Q. 461 (1963); Jessup, Has the Supreme Court Abdicated One of
Its Functions?, 40 Am. J. Int'l L. 168 (1946); Leigh, Sovereign
Immunity, —The Case of the “Imias,” 68 Am. J. Int'l L. 280 (1974) ;
H.R. Rep. No. 1487, 94th Cong., 2d Sess. 12 (1976), reprinted in,
1976 U.S. Code Cong. & Admin. News at 6610-11. See also Rich v.
Naviera Vacuba S.A., 295 F.2d 24 (4th Cir. 1961) (per curiam)
(State Department suggestion of immunity in a clearly commercial
case, made as quid pro quo to gain release of hijacked airplane) ;
Chemical Natural Resources, Inc. v. Republic of Venezuela, 420 Pa.
134, 215 A.2d 864, cert. denied, 385 U.S. 822 (1966) ; Sovereiqn
Immunity Decisions of the Department of State, May 1952 to Janu-
ary 1977 (eds. M. Sandler, L. Vagts & B. Ristau), published in,
U.S. Department of State, Digest of United States Practice in
International Law 1017 (1977).
29
that would have added a private cause of action to the
Foreign Corrupt Practices Act,“ leaving enforcement to
U.S. governmental entities.
Moreover, the Department of State’s communications
with the District Court here did not contain any express
“assurance from [the Executive] branch,” that adjudica-
tion of respondent’s claims would not “frustrate the con-
duct of the Nation’s foreign policy.” * For the Executive
to invoke its authority as a political branch, it must state
unequivocally that the action should go forward as a mat-
ter of U.S. foreign policy—not merely under its view of
the law concerning the Act of State doctrine. The De-
partment of State’s letter in the present case expressed
views only on a legal question—namely the applicability
of the Act of State doctrine to inquiry into a foreign
state’s motivations. Pased upon this legal conclusion
(which we submit is unduly mechanical) ,“° and the State
Department’s assumptions about the particular facts of
this case, the letter concluded that the Department did
“not believe the Act of State doctrine would bar the
Court from adjudicating this dispute.” ** This is a con-
8°15 U.S.C. § 7T8dd-1 (West Supp. 1989). The legislative history
of the Foreign Corrupt Practices Act demonstrates that Congress
expressly considered the issue of private enforcement but refused
to grant a private cause of action. See, e.g., S. 3379, 94th Cong.,
2d Sess., 122 Cong. Rec. 12,604 (1976); Prohibiting Bribes to
Foreign Officials: Hearings on S. 3138, S. 3379, and S. 3418 Before
the Senate Comm. on Banking, Housing and Urban Affairs, 94th
Cong., 2d Sess. (1976); See also McLean v. International Har-
vester Co., 817 F.2d 1214 (5th Cir. 1987); Shields ex rel. Sund-
strand Corp. v. Erickson, 710 F. Supp. 686 (N.D. Ill. 1989);
Eisenberger v. Spectex Industries, Inc., 644 F. Supp. 48 (E.D.N.Y.
1986); Lewis ex rel. Nat’l Semiconductor Corp. v. Sporck, 612 F.
Supp. 1316 (N.D. Cal. 1985).
‘4 First Nat'l City Bank, 406 U.S. at 769.
%5 See also Brief of the United States as Amicus Curiae, at 16-22
(June 1989).
86 Petition for Writ of Certiorari, at A-75 (June 17, 1988).
30
sidered reasoned legal argument in the nature of an
amicus curiae brief that is entitied to considerable weight
as a legal argument. It is not, however, a “Bernstein”
letter stating that the Act of State doctrine “should
not” *’ be applied because of foreign relations concerns.**
This Court therefore has no occasion to address squarely
the question whether it should recognize the Bernstein
exception to the Act of State doctrine.
CONCLUSION
For the reasons stated above, the decision of the court
of appeals should be reviewed and the complaint
dismissed.
Respectfully submitted,
DANIEL K. MAYERS
Counsel of Record
DAVID WESTIN
GARY B. BORN
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037-1420
(202) 663-6000
Counsel for Amicus Curiae
August 24, 1989 The Republic of China
6T Compare the Bernstein letter submitted in First National City
Bank, which stated that “the Department of State believes that the
act of state doctrine should not be applied to bar consideration of a
defendant's counterclaim or set-off against the Government of Cuba
in this or like cases.” 406 U.S. at 764.
** Indeed, to the extent the Legal Advise’ s letter mentions for-
eign relations concerns, it states that “inquiries into the motivation
and validity of foreign states’ actions and discovery against foreign
government officials may seriously affect United States foreign re-
lations.” Petition for Writ of Certiorari, at A-75 (June 17, 1988).
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.