- 88 - 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).Page: Previous 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 Next
Last modified: May 25, 2011