INTERNATIONAL LAW
W.B. Fisch, Fall 2008
Assignment #27

[Ch. 12. INTERNATIONAL CONFLICT OF LAWS]

D. The Act of State Doctrine

UNDERHILL V. HERNANDEZ, p. 860 (US 1897)

1. what act is the subject matter of the suit?

2. what defense is asserted?

3. is it a uniquely governmental act?

4. does it matter that Hernandez was not acting for a recognized government at the time?

5. what would have been the result, if Hernandez' revolution had failed?

BANCO NACIONAL DE CUBA V. SABBATINO, RECEIVER, p. 862 (U.S. 1964)

1. what was the underlying commercial transaction?

2. what was the specific subject matter of the lawsuit?

3. what was the theory of recovery in BoNac's action?

a. breach of contract? what contract?

b. conversion of the sugar, represented by the bills of lading?

c. what difference does it make?

4. what was the act of state involved?

5. what was the position of the State Department with respect to that act?

6. what is the rationale for the AoS doctrine?

a. a principle of international law?

b. a requirement of the U.S. constitution?

c. a "prudential" rule adopted by the Court to preserve its own credibility?

7. What was the Court's view of the state of international law on the issue at hand?

The Sabbatino Amendment (text n. 3 p. 869)

1. what are the specific prerequisites for applying the prohibition against applying AoS?

2. should the statute be regarded as an unconstitutional interference with the judiciary?

W.S. KIRKPATRICK & CO. V. ENVIRONMENTAL TECTONICS CORP., INT'L, p. 871 (US 1990)

1) what does the plaintiff have to show under RICO in order to recover?

a) that a bribe was employed which was unlawful under Nigerian law?

b) that the awarding of the contract to the defendant was unlawful?

2) was the bribe an "act of state" within the meaning of the AoS doctrine?

3) what was the position of the State Department in this case?

a) Did they think that AoS should not be applied here?

b) were they arguing for a general interpretation of AoS calling for a case-by-case assessment of whether there would be embarrassment to the executive branch resulting from invalidation of the foreign act of state in question?