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The Act of State Doctrine Judicial Deference or Abstention

Published online by Cambridge University Press:  28 March 2017

Robert Delson
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Extract

Notwithstanding a letter by the Legal Adviser of the State Department suggesting that the act of state doctrine should not be applied to bar consideration of the defendant's counterclaim and set-off arising out of the expropriation of the defendant's property by the Cuban Government, the U.S. Court of Appeals for the Second Circuit in Banco National de Cuba v. First National City Bank of New York1 applied the doctrine and refused to review the merits of the counterclaim and set–off.

Type
Research Article
Information
American Journal of International Law , Volume 66 , Issue 1 , January 1972 , pp. 82 - 93
Copyright
Copyright © American Society of International Law 1972

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References

1 442 F.2d 530 (2d Cir., 1971); 65 A.J.I.L. 812 (1971); cert, granted, 92 S. Ct. 79, Oct. 12, 1971.

2 Bernstein v. N. V. Nederlandsche-Amerikaansche, etc., 210 F.2d 375 (2d Cir., 1954); 48 A.J.I.L. 499 (1954).

3 442 F.2d 530, at 538; 65 A.J.I.L. 391 at 393 (1971).

4 442 F.2d 530 at 534.

5 Ibid, at 538. Judge Hays’ dissent stated, inter alia: “More fundamental than a mere lack of conformity with Bernstein, however, is the fact that the majority, by applying the act of state doctrine after an independent evaluation of the merits of the State Department’s decision, is usurping the same executive prerogative which it is the function of that doctrine to preserve.”

6 See, e.g., Oetjen v. Central Leather Co., 246 U.S. 297; 12 A.J.I.L. 421 (1918).

7 376 U.S 398; 58 AJ.I.L. 779 (1964).

8 270 F.Supp. 1004 (S.D.N.Y., 1967); 62 A.J.I.L. 182 (1968).

9 431 F.2d 394 (2d Cir., 1970); 65 A.J.I.L. 195 (1971).

10 Cited note 7 above.

11 431 F.2d at 402. It may be noted that the Court of Appeals of New York had, some years earlier, also interpreted the Hickenlooper Amendment as applying only to property brought into the United States. While the majority opinion cites this case at note 13, the case is not discussed nor seemingly relied upon. See French v. Banco Nacional de Cuba, 23 N.Y.2d 46, 295 N.Y.S.2d 433, 242 N.E.2d 704 (1968); 63 A.J.I.L. 640 (1969).

12 Appendix to 442 F.2d 530 at 538 (2d Cir., 1971); 65 A.J.I.L. 393 (1971).

13 400 U.S. 1019 (1971).

14 Ibid.

15 442 F.2d at 532.

16 See Brief of Defendant-Appellant before Court of Appeals on remand at p. 3.

17 Ibid, at p. 5.

18 210 F.2d 375 (1954), cited note 2 above.

19 See Brief of Plaintiff-Appellee before the Court of Appeals on remand at p. 4.

20 See letter of Legal Adviser of Department of State, cited note 12 above, at 537.

21 See Brief cited note 19 above, at p. 5.

22 294 F.2d 925 (D.C. Cir., 1961); cert, den., 368 U.S. 960; 56 A.J.I.L. 215 (1962).

23 See Brief cited note 19 above, at pp. 9–10.

24 442 F.2d at 534 and 535.

25 See note 5 above.

26 168 U.S. 250 (1897).

27 Ibid, at 252.

28 Cited note 6 above.

29 246 U.S. at 303.

30 246 U.S. 304; 12 A.J.I.L. 417 (1918).

31 246 U.S. at 310.

32 Underhill v. Hernandez, 65 F. 577 at 579 (1895). For other instances in which the Supreme Court applied the act of state doctrine as a rule of international comity rather than by virtue of any deference to the Executive Branch, see, e.g., American Banana Company v. United Fruit Co., 213 U.S. 347; 3 A.J.I.L. 1006 (1909); Shapleigh v. Mier, 299 U.S. 468; 31 A.J.IL. 528 (1937).

33 Cited note 2 above.

34 Id.

35 163 F.2d 246 (2d Cir., 1947); 42 A.J.I.L. 217 (1948).

36 163 F.2d at 249.

37 173 F.2d 71 (2d Cir., 1949); 44 A.J.I.L. 182 (1950).

38 20 Dept. of State Bulletin 592 at 593 (May 8, 1949).

39 The case was subsequently settled.

40 In its brief as Amicus Curiae before the Court in Sabbatino, the United States characterized the Bernstein exception as “an exceedingly narrow one.”

41 376 U.S. 398 (1964).

42 Ibid, at 427.

43 Ibid, at 423.

44 While the Court on the one hand disavowed principles of international law and comity as bases of the act of state doctrine, Justice Harlan did state that “. . . historic notions of sovereign authority do bear upon the wisdom of employing the act of state doctrine.” 376 U.S. at 421.

45 Ibid, at 428.

46 Henkin, , “The Foreign Affairs Powers of the Federal Courts,” 64 Columbia Law Rev. 805, at 822 (1964)CrossRefGoogle Scholar.

47 See Lowenfeld, , “Claims Against Foreign States—A Proposal for Reform of United States Law,” 44 N.Y.U. Law Rev. 901, at 911 (1969)Google Scholar.

48 The Tate Letter recognized that the State Department’s adoption of the restrictive theory of sovereign immunity was not binding on the courts: “It is realized that a shift in policy by the executive cannot control the courts but it is felt that the courts are less likely to allow a plea of sovereign immunity where the executive has declined to do so.” 26 Dept. of State Bulletin 984 at 985 (1952).

49 Indeed, at least according to one court, the burden of proof in sovereign immunity cases is on the government claiming such immunity. See Pan American Tankers Corp. v. Republic of Viet-Nam, 296 F.Supp 361, at 364 (S.D.N.Y., 1969); 63 A.J.I.L. 826 (1969).

50 Cited note 7 above.

51 See letter dated May 19, 1952, from Acting Legal Adviser Tate to Acting Attorney General Permian, note 48 above. It is well to note that judicial deference to Executive suggestions in sovereign immunity cases has itself been under sharp criticism. This criticism has been based both on the fact that the question of whether to grant immunity is a question of international law and should therefore be decided by the Judicial rather than Executive Branch (see Jessup, “Has the Supreme Court Abdicated One of Its Functions?” 40 A.J.I.L. 168 (1946)), and upon the ground that since, under the restrictive theory, questions of sovereign immunity turn upon findings of fact, the courts are better equipped than the State Department to resolve sovereign immunity issues. See speech by Murray J. Belman, former Deputy Legal Adviser of the Department of State, 1969 Proceedings, American Society of International Law at 184. It is thus paradoxical that at the same time that the question of judicial deference to the Executive has been under sharp criticism in sovereign immunity cases, an attempt is being made to extend the scope of such deference to act of state cases.

52 Banco Nacional de Cuba v. Sabbatino, 376 U.S. at 428.

53 See note 32 above.