Federal act of state doctrine
At the State Department, Mark Feldman fashioned the government’s position on use of the act of state doctrine in the Cuban expropriation litigation. Citibank had urged State to ask the Supreme Court to overrule Sabbatino.[1] I recommended a case-by-case approach based on the Bernstein [2] precedent and helped draft the letter Legal Adviser John Stevenson submitted to the courts suggesting that the courts could proceed to adjudicate the validity of Cuban confiscations under international law without prejudice to U.S. foreign relations.
In private practice, I established the treaty exception to the act of state doctrine in the Kalamazoo Spice case[3] where the Sixth Circuit held that the expropriation provision of the U.S.- Ethiopia FCN Treaty laid down the controlling legal standard. As Chairman of the ABA Committee on Foreign Sovereign Immunity, I drafted and promoted Section 15 of the Federal Arbitration Act[4] barring use of the act of state doctrine to refuse enforcement of arbitration agreements or awards.
Changed Circumstances
Over the years, the doctrine has been shredded with exceptions to the point where, following Kirkpatrick v. ETC,[5] I concluded that little remained of it.[6] Today, the separation of powers concerns on which Sabbatino was based have largely disappeared. In 1964, the Court was reluctant to support the long-standing U.S. Executive position that international law requires just compensation for expropriated property, because that position was seriously challenged in the international community, and the Court was clearly not disposed to contradict the Executive on a key foreign policy issue. Fifty years later, the controlling legal standard then missing has emerged. The U.S. legal position is firmly established in thousands of international agreements, and Sabbatino should be set aside.
Current developments
The courts have not yet focused on this fundamental change in circumstances. However, the D.C. Circuit breathed new life into the Second Hickenlooper Amendment[7] in Agudas Chasidei Chabad,[8] holding that the statute “normally bars application of the act of state doctrine to seizures occurring after January 1, 1959.”[9] This conclusion ignores earlier cases that limited the scope of the Amendment,[10] but it likely reflects the original intent of Congress. Still, the act of state doctrine remains in play. In December, the Second Circuit applied the act of state doctrine in Konowaloff v. Metropolitan Museum of Art [11]to bar recovery of a Cezanne painting confiscated from its Russian owner in the early days of the Bolshevik revolution.
[1] Banco Nacional de Cuba v Sabbatino,376 U.S. 398 (1964
[2] Bernstein v. N.V. Nederlandsche-Amerikaansche, 210 F2d. 375 (2 Cir. 1954).
[3] Kalamazoo Spice Extraction Co. v. Provisional Military Government of Socialist Ethiopia, 729 F. 2d 422 (6 Cir. 1984).
[4] 9 U.S.C. 15.
[5] W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp., 493 U.S. 400 (1990).
[6] See, Feldman, Supreme Court Limits the Act of State Doctrine, Newsletter, Committee on Foreign Sovereign Immunity, ABA Section on International Law (Spring 1990).
[7] 22 U.S.C. § 2370(e)(2
[8] Agudas Chasidei Chabad of United States v. Russian Federation,7 the D.C. Circuit 528 F.3d 934 (D.C. Cir. 2008).
[9] 528 F. 3d at 953
[10] See, e.g., Compania de Gas de Nuevo Laredo, SA v. Entex, Inc. 686 F. 2d 322 (5 Cir.1982).
[11] (2Cir. December 18, 2012).