Page 146 - Law of Peace, Volume ,
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Pam 27-161-1

            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.)
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