Page 146 - Law of Peace, Volume ,

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tent to ascertain and apply international law. I propriating, or otherwise seizing ownership or control of property so
I do not believe that the act of state doctrine as judicially fashioned in owned,
this Court, and the reasons underlying it, require American courts to and such country, government agency, or govemment su~vision fails
1 decide cases in disregard of international law and of the rights of litigants within a reasonable time (not more than six months after such action.
to a full determination on the merits. or, in the event of a referrh to the Foreign ClaimsSettlement Commis-
[The remaining text of MR. JUSTICE WHITE'S extensive dissenting sion of the United States within such period as provided herein, not
opinion is omitted.] more than twenty days after the report of the Commission is received)
to take appropriate steps, which may include arbitration, to discharge its
7-26. Legislative Reaction to Banco National v. Stab-
obligations under international law toward such citizen or entity, includ-
batino - The Hickenlooper Amendments. In reaction to ing speedy compensation for such property in convertible foreign ex-
the 1964 Sabbatino decision to close the door of U.S. change, equivalent to the full value thereof, as required by international
courts to American claimants affected by expropriations law, or fails to take steps designed to provide relief from such taxes, ex-
abroad, the Congress quickly passed "remedial" legis- actions, or conditions, as the case may be; and such suspension shall
continue until the President is satisfied that appropriate steps are beiig
lation, the Hickenlooper Amendments to the Foreign
taken, and no other provision of this chapter shall be construed to
Assistance Act. authorize the Resident to waive the provisions of this subsection.
Upon request of the President (within seventy days after such action
UNITED STATES: THE "H1CKENU)OPER AMENDMENTS"
TO THE FOREIGN ASSISTANCE ACT referred to in subparagraphs (A), (B), or (C) of this paragraph), the
22 U.S.C. 5 2370.
Foreign Claims Settlement Commission of the United States (estab-
lished pursuant to Reorganization Plan No. 1 of 1954,68 Stat. 1279) is
Prohibitions against furnishing assistance
hereby authorized to evaluate expropriated property, determining the
***
full value of any property nationalized, expropriated, or seized, or sub-
(e)(1) The President shall suspend assistance to the government of jected to discriminatory or other actions as aforesaid, for purposes of this
any country to which assistance is provided under this chapter or any subsection and to render an advisory report to the President within
other Act when the govemment of such country or any government ninety days after such request. Unless authorized by the President, the
agency or subdivision within such country on or after January 1,1962- Commission shallnot publish its advisory report except to the citizen or
(A) has nationalized or expropriated or seized ownership or con- entity owning such property. There is hereby authorized to be appropri-
trol of property owned by any United States citizen or by any corpora- ated such amount, to remain available until expended, as may be neces-
tion, partnership, or association not less than 50 per centum sary from time to time to enable the Commission to carry out ex-
beneficially owned by United States citizens, or peditiously its functions under this subsection.
(B)has taken steps to repudiate or nullify existing contracts or (2) Notwithstanding any other provision of law, no court in the
agreements with any United States citizen or any corporation, United States shall decline on the ground of the federal act of state
partnership, or association not less than 50 per centum beneficially doctrine to make a determination on the merits giving effect to the prin-
owned by United States citizens, or ciples of international law in a case in which a claim of title or other right
to property is asserted by any party including a foreign state (or a party
(C)has imposed or enforced discriminatory taxes or other exac-
tions, or restrictive maintenance or operational conditions, or has claiming through such state) based upon (or traced through) a confii-
taken other actions, which have the effect of nationalizing, ex- tion or other takingafter January 1, 1959, by an act of state in violation
of the principles of international law, including the principles of compen-
- sation and the other srnndards set out in this subsection: Provided, That
1. The cow of the following counkies, among others, and their territories have examined
a fully "exmted" foreign act of state expropriating property: this subparagraph shall not be applicable (1) in any me in which an act
England:Anglo-Iranian Oil Co. v. IefTrate, 119531 Int'l L.Rep. 316 (Adensup. Ct.); N. V. de of a foreign state is not contrary to international law or with respect to a
Baldshe Petroleum Maamhappij v:The War Damnge Comm'n, I19561 Int'l L.Rep. 810 claim of title or other right to property acquired pursuant to an irrevoca-
Winsapore ~APP.). ble letter of credit of not more than 180 days duration issued in good
Netherlands: Senembsh Mastxhappij N. V. v. Republiek Indonesie Bmk Indonesia,
NederlandseJursipmdentie 1959, No. 73, p. 218 (AmsterdamCt.App.), excerpts reprioted in faith prior to the time of the confition or other taking, or (2) in any
Domke, Indonesian Nationahtion Mess= Before Foreign Courts, 54 Am.l.Int'l L. 305, casewith respect to which the President determines that application of
307-315 (1960). the act of state doctrine is required in that particular case by the foreign
Germany: N. V. Verenigde Deli-Maatschapijen v. Deutsch-lndonesische Tabak-Han- policy interests of the United States and a suggestion to this effect is filed
dekgesekhntl m. b. H. (Bremen Ct.App.), excerpts reprinted in Domke, supra, at 313-314
(1960); Confiscationof Property of Sudeten GermansCase. 1119483AM.D~24.25 (No. 12) on his behalf in that care with the court. [Emphasis supplied.]
(Ammerkht of Diiolfii). ***
lawn: Anglo-Iranian Oil Co. v. ldemitsu Kosan Kabushiki Kaisha, I19531 Int'l L.Rep. 305
Vist.Ct. of Tokyo), ad, 119531 Int'l L.Rep. 312 (High Ct. of Tokyo). 7-27. Judicial Reaction to the Hickenlooper Amend-
Italy: Anglo-Iranian Oil Co. v. S.U.P.O.R. Co.. I19551 Int'l L.Rep. 19 (Ct. of Venice); Anglo-
lranianOil Co. v. S.U.P.O.R. Co., [I9551 Int'l L.Rep. 23 (Civ.Ct. of Rome). ments. a.Following passage of the Hickenlooper Amend-
Franffi: Volatron v. Moulin, 11938-19403 h.Dii.24 (Ct. of App. of Aix); Polam ments, the courts were called upon to rule on a number of
Iberieao v. Nathan Bloeh, I1938-19401 h.Dig.150 (Ct. of Cassation).
The Court does not refer to any country which has applied the aet of state doctrine in a ease issues resulting from the passage of this legislation. In
where a subsmtinl international law he sought to be raisedby an alien whose propeny has Banco Nacional De Cuba v. Farr, 111 the U.S.Second
is
been expropriated. Thismuntry and thisCourt stand alone among the civilizednations of the
world in rulingthat such an kue is not cognizable in a court of law. Circuit Court of Appeals &ied the constitutionality of
The Cowt noles that the courts of both New York and Great Britain have articulated the aet of the Hickenlooper Amendments. The 1968case of French
state doctrine in broad laneuage similar to that mdby this Court in Underhill v. Hernandez,
168 US. 250.18 S.Ct. 83, and from thisit infers that these courts reoognizeno international v. Banco Nacional De Cuba 112 involved a Cuban law
law exceptionto theanof state dwthe. The cawrelied on by the Cowl involved no intern- controlling currency in that state. The New York Court of
tional law issue. For in these ~arasthe party objecting to the validity of the foreign sct was a
ahn of the foreign state. It is sigoihnt that courts of both New York and Gat Britain, in Appeals ruled that the Hickenlooper Amendments not-
apparently the fvst caw in which an international law issue was squarely posed, ruled that the withstanding, the Act of State doctrine applied to this par-
act of state doctrine was no bPT to examination of the validity of the foreign act. Anglo-lranian
Oil Co. v. Infhate, 119531 Int'l L.Rep. 316 (Aden Sup.Ct.): "mhe lranian Laws of 1951 were ticular factual situation. The Amendments were said to ap
invalid by international law, for, by them, the property of the company wasexpropriatedwith-
out any compensation." Sulyok v. Penzintweti Kozpont Budapest, 279 App.Div. 528, 11 1
N.Y.S.2d 75, ad, 304 N.Y. 704, 107 N.E.2d 604 (foreign expropriation of inlangible prop
em denied effect as contrary to New York public poky.)