Private Justice, Uniformity and the Foreign Act of State Doctrine

Marcus Teo
National University of Singapore
Singapore

Saturday, 14 September – 9:00 am
Room V U104, Faculty of Law – Professor-Huber-Platz 2, 80539 Munich

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The common law Act of State doctrine remains notoriously indeterminate. Even the nature and scope of one of its more well-defined sub-rules, the Foreign Act of State doctrine (the “Doctrine”), remains highly contested: in Belhaj v Straw, the UK Supreme Court remained divided on every aspect of the Doctrine, agreeing only that it would preclude challenges to the validity of certain foreign laws or executive acts.

This article forwards a clear justification for the Doctrine, from which its proper purpose, scope of application and exceptions can be determined. It builds on a justification hinted at by the majority in Belhaj: the Doctrine is a “general principle of private international law”, concerned with upholding private justice in disputes involving the application of foreign law.

This private justice justification helps clarifies the Doctrine’s purpose: it can be used as a tool to ensure systemic international uniformity of decisions in choice-of-law disputes, concerning the application of foreign law, regardless of the forum proceedings are commenced in. Ordinarily, systemic international uniformity is achieved by the loyal application of foreign private law, which courts can carry out effectively because private law adjudication generally prizes legal certainty and doctrinal coherence. However, when the Doctrine arises for consideration, courts are called to apply foreign public(constitutional and administrative) law – which is so closely related to debates on foreign public policy and politics, and questions of the foreign court’s political legitimacy, that no court can hope to reasonably approximate the reasoning or outcome the relevant foreign court would reach. Thus, the forum’s courts best shot at upholding systemic international uniformity in such cases is not to attempt (in vain) to apply foreign public law, but simply to refuse to assess the validity of the foreign legislation and executive acts under foreign public laws, which provides the clearest and most normatively justifiable benchmark for all courts (the forum’s courts and those of third states) to coordinate their behaviour around.

The private justice justification also helps better explain the Doctrine’s scope. Courts have, over the years, riddled the Doctrine with exceptions and qualifications, to protect the ordinary choice-of-law process. Reorienting the Doctrine as one justified on private international law’s goal of upholding systemic international uniformity better explains these exceptions and their ambits. For example, the exception that the Doctrine applies only to foreign legislation and executive acts, but not foreign judgments, is now explicable as simply one example of private international law’s general policy of trifurcating its processes into the choice of jurisdiction, law and judgments. Likewise, the exception that Doctrine cannot cover foreign state acts which arejure gestionis can now be explained as a rule that the Doctrine doesn’t apply when the issue in dispute is one for which private international law prizes party autonomy rather than the loyal application of foreign law – such as contractual issues in disputes involving jurisdiction or arbitration clauses. Similar, the fact that Doctrine may be subject to a public policy exception is now explicable as an ordinary use of that exception for rules of foreign law, which just happen to be foreign legislation or executive acts.