Banco Bpm
Tommye Hope
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If there is no treaty or other agreement governing the matter, federal courts do not have jurisdiction over a dispute concerning another country taking property within its own territory, even if it violates international law.
A New York corporation arranged to buy sugar from a subsidiary of a Cuban corporation, of which Americans owned most of the stock. However, the Cuban government issued a decree that passed title of the sugar to a Cuban governmental agency. The New York company agreed to pay the proceeds for the sugar to Banco Nacional as a condition of obtaining a Cuban export license. Once it had received the sugar, the New York company broke this promise and instead transferred the funds to Sabbatino, a receiver for the sugar company in Cuba. Banco Nacional pursued a claim in a federal court under diversity jurisdiction for conversion of the proceeds. The lower court ruled that a taking does not convey valid title if it is invalid under international law. It then found that Cuba had violated international law by issuing the expropriation decree and granted summary judgment for Banco Nacional.
The act of state doctrine, articulated in the Primary Holding above, controls both federal and state courts, even though it does not arise from the Constitution or international law. Instead, it arises from the far greater authority of the political branches of government relative to the judicial branches in the area of foreign affairs. If there is a substantial degree of codification or consensus in a certain area of international law, courts may be able to resolve matters arising under it because clear principles can be identified and applied to specific facts. But courts should not develop a principle independently while trying to avoid conflicting with the national interest or international justice. Sovereign immunity and sovereign authority are not the only situations in which the act of state doctrine may arise.
Parties are entitled to have a full determination on the merits, and courts may not fail to enforce rights that are granted under international law. The political branches may have greater control over foreign affairs than the judicial branches, but their control is not so absolute that every issue regarding the validity of a foreign act of state is always a political question. The Constitution expressly permits courts to resolve disputes between citizens and non-citizens, between two non-citizens, or between foreign nations and American parties.
Courts generally reserve matters of foreign relations for the executive branch, since this is a core power of the President under the Constitution. However, matters of international law that are less central to foreign relations may be more susceptible for the judiciary to handle.
Respondent American commodity broker contracted with a Cubancorporation largely owned by United States residents to buy Cubansugar. Thereafter, subsequent to the United States Government'sreduction of the Cuban sugar quota, the Cuban Governmentexpropriated the corporation's property and rights. To secureconsent for shipment of the sugar, the broker, by a new contract,agreed to make payment for the sugar to a Cuban instrumentalitywhich thereafter assigned the bills of lading to petitioner,another Cuban instrumentality, and petitioner instructed its agentin New York to deliver to the broker the bills of lading and sightdraft in return for payment. The broker accepted the documents,received payment for the sugar from its customer, but refused todeliver the proceeds to petitioner's agent. Petitioner brought thisaction for conversion of the bills of lading to recover paymentfrom the broker and to enjoin from exercising dominion over theproceeds a receiver who had been appointed by a state court toprotect the New York assets of the corporation. The District Courtconcluded that the corporation's property interest in the sugar wassubject to Cuba's territorial jurisdiction, and acknowledged the"act of state" doctrine, which precludes judicial inquiry in thiscountry respecting the public acts of a recognized foreignsovereign power committed within its own territory. The courtnevertheless rendered summary judgment against the petitioner,ruling that the act of state doctrine was inapplicable when thequestioned act violated international law, which the District Courtfound had been the case here. The Court of Appeals affirmed,additionally relying upon two State Department letters which ittook as evidencing willingness by the Executive Branch to ajudicial testing of the validity of the expropriation.
1. The privilege of resorting to United States courts beingavailable to a recognized sovereign power not at war with theUnited States, and not being dependent upon reciprocity oftreatment, petitioner has access to the federal courts. Pp.376 U. S.408408-412.
3. This suit is not uncognizable in American courts as being oneto enforce the "public" acts of a foreign state, since theexpropriation law here involved had been fully executed withinCuba. Pp. 376 U. S.413-415.
4. The Government's uncontested assertion that the two StateDepartment letters expressed only the then wish of the Departmentto avoid commenting on the litigation, obviates the need for thisCourt to pass upon the "Bernstein exception" to the act of statedoctrine, under which a court may respond to a representation bythe Executive Branch that, in particular circumstances, it does notoppose judicial consideration of the foreign state's act. Pp.376 U. S.418-420.
(c) Conflicts between the Judicial and Executive Branches couldhardly be avoided were the judiciary to adjudicate with respect tothe validity of expropriations. Even if the combination alleged inthis case of retaliation, discrimination, and inadequatecompensation made the expropriation here violative of internationallaw, a judicial determination to that effect would still be unwiseas involving potential conflict with or embarrassment to theExecutive Branch in later litigation. Pp. 376 U. S.432-433.
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