Situational Situs: The Influence of Domestic Politics on Judicial Application of the Act of State Doctrine - The Russian Case

The act of state doctrine bars courts from declaring invalid acts of foreign
states occurring within that state’s territory. Since its first introduction into the
American legal tradition in 1867, judges, lawyers, and legal scholars have
struggled to articulate a coherent interpretation of principles underlying its
application. Traditional interpretations of the doctrine hold that it is governed
by comity, and is thus a rule of external deference to foreign sovereigns, or that
judicial application of the doctrine is driven by separation of powers concerns,
and is thus a rule of internal deference to the Executive. Recognizing the
shortcomings of these traditional interpretations, revisionist scholars have argued, in part, that the act of state doctrine is best understood in the context of a state’s jurisdiction to prescribe. These interpretations fail to adequately describe judicial application of the act of state doctrine because they adhere solely to conventional methods of legal analysis. As a legal doctrine with foreign affairs implications, judicial application of the act of state doctrine can be explained by reference to international relations theory. A subset of liberalism, liberal internationalist theory and its model of transnational legal relations provides the framework necessary for a holistic and coherent interpretation of the act of state doctrine. Comparisons of courts’ situs determinations in intangible property cases arising from the Russian Revolution illuminates the validity of the liberal internationalist model’s characterization of the doctrine. Situs in these cases serves as a proxy for each court’s desire to apply or withhold application of the act of state doctrine on the basis of certain extrajudicial factors.