493 U.S. 400 (U.S. Supreme Court 1990)
W.S. Kirkpatrick & Co.
Does the act of state doctrine bar a U.S. court from adjudicating claims alleging that a foreign government contract was procured through bribery where the court need not declare the foreign sovereign's contract award invalid to resolve the dispute?
The act of state doctrine is a substantive rule of decision requiring U.S. courts to refrain from declaring invalid, and to regard as valid, the official acts of a recognized foreign sovereign performed within its own territory. The doctrine applies only when the outcome of the case turns upon the court's determination that the foreign sovereign's official act is invalid; it is not a jurisdictional bar, nor a free-ranging prudential doctrine aimed at avoiding embarrassment or sensitive foreign relations issues.
No. The act of state doctrine does not bar adjudication because the plaintiff's claims can be resolved without declaring the Nigerian government's contract award invalid. The case may proceed.
Kirkpatrick sharply narrows the act of state doctrine and provides a clear, administrable test: the doctrine applies only if the court must decide that a foreign sovereign's official act is invalid to resolve the case. It confirms the doctrine is a substantive merits rule—not a jurisdictional or generalized prudential bar—and rejects case-by-case balancing based on potential diplomatic friction when validity is not at issue. For students and practitioners, the case shows how to frame claims involving foreign government conduct to avoid act-of-state problems (e.g., seeking damages from private parties without asking a court to nullify a foreign act). It also clarifies the distinction between the act of state doctrine and other doctrines like foreign sovereign immunity and the political question doctrine.