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In the principal contemporary formulation of the act of state
doctrine, the U.S. Supreme Court in Banco Nacional de Cuba v.
Sabbatino, 376 U.S. 398, 428 (1964), stated:
rather than laying down or reaffirming an inflexible and
all-encompassing rule in this case, we decide only that
the Judicial Branch will not examine the validity of a
taking of property within its own territory by a foreign
sovereign government, extant and recognized by this
country at the time of suit, in the absence of a treaty
or other unambiguous agreement regarding controlling
legal principles, even if the complaint alleges that the
taking violates customary international law.
The act of state doctrine thus generally precludes judicial
examination of the lawfulness of a taking by a foreign sovereign of
property located in its territory, whether under the law of that
foreign country, under international law, or under the law or
policy of the forum. 1 Restatement, Foreign Relations Law 3d, sec.
443, cmt. d (1986).42
Although the act of state doctrine has predominantly been
applied in cases involving a foreign sovereign's expropriation of
private property, the doctrine has also been applied to other types
of acts by foreign sovereigns. Id. cmt. c & reporter's note 7.
The burden of establishing the act and its character as an act
of state is on the party invoking the doctrine. Republic of the
Philippines v. Marcos, 806 F.2d 344, 356-357, 359-360 (2d Cir.
1986); 1 Restatement, supra sec. 443, cmt. i & reporter's note 3.
42 The act of state doctrine is to be contrasted with the
U.S. courts' well-established refusal to enforce a foreign
country's penal or revenue laws. Banco Nacional de Cuba v.
Sabbatino, 376 U.S. 398, 413-415 (1964); 1 Restatement, Foreign
Relations Law 3d, sec. 443, cmt. i & reporter's note 10 (1986).
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