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A Threshold Test for Validity: The Supreme Court Narrows the Act of State Doctrine

36 Pages Posted: 12 Nov 2011  

Steven R. Swanson

Hamline University - School of Law

Date Written: January 1, 1991

Abstract

This article analyzes the Supreme Court’s recent decisions involving the act of state doctrine. This doctrine, which is based upon notions of international comity, prevents the courts of one state from adjudicating the acts of a foreign state that occur within the foreign state’s territory. This respect for foreign tribunals reduces friction between states and promotes more cooperative interaction in the international arena. The article first defines comity and explains its importance in international litigation. Professor Swanson then outlines the diminishing role of comity as a basis for the act of state doctrine. In early opinions, United States courts refused to question a foreign sovereign’s act of state. Professor Swanson asserts that during the last century, the Supreme Court has backed away from the act of state doctrine and has left the doctrine’s parameters in disarray. As a result, the task of defining the doctrine has been left to the lower courts. In this context, Professor Swanson discusses significant Supreme Court and lower court decisions. The article pays particular attention to a the Supreme Court case, W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp. In Kirkpatrick, a unanimous court held that the validity of a foreign state’s actions must be in question before the act of state doctrine is applicable. Professor Swanson interprets this decision as an attack on the act of state doctrine. Moreover, Professor Swanson asserts that this decision gives courts free reign to retain or reject cases for reasons completely unrelated to comity and other political concerns. Professor Swanson concludes that by narrowing the doctrine’s scope, the Supreme Court has shown a lack of respect for the laws and practices of other states.

Keywords: Comity doctrine, occidental petroleum, Hunt v. Mobil Oil, Kirkpatrick, validity, state doctrine, international comity, comity, international law, Environmental Tectonics

Suggested Citation

Swanson, Steven R., A Threshold Test for Validity: The Supreme Court Narrows the Act of State Doctrine (January 1, 1991). Vanderbilt Journal of Transnational Law, Vol. 23, p. 889, 1991. Available at SSRN: https://ssrn.com/abstract=1957806

Steven R. Swanson (Contact Author)

Hamline University - School of Law ( email )

1536 Hewitt Avenue
Saint Paul, MN 55104-1237
United States

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