W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp. case brief, 493 US 400 (1990)

W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp.
493 US 400 (1990)

FACTS
-       Kirkpatrick won a bid on a contract by paying a bribe to the Nigerian government; Tectonics was a losing bidder
-       Act of State Doctrine analysis

• Does the act of state doctrine arise in this case? In other words, does the outcome of the case turn on whether the court gives legal effect to the act of the foreign government in its own territory?
  • The lower court says that it does – for Tectonics to win, it would have to prove that the Nigerian government took a bribe, and, because of that bribe, awarded the job to Kirkpatrick
    • Remember: it does not matter that the Nigerian government is not a party to the suit, because the act of state doctrine may come into play where none of the parties is a state so long as the outcome of the case depends on whether a court gives legal effect to the act of a state
  • But the Supreme Court says that the act of state doctrine does NOT apply here
    • “Act of state issues only arise when a court must decide – that is, when the outcome of the case turns upon – the effect of official action by a foreign sovereign.  When that question is not in the case, neither is the act of state doctrine.  That is the situation here.  Regardless if what the court’s factual findings may suggest as to the legality of the Nigerian contract, its legality is simply not a question to be decided in the present suit….”
    • The determination as to whether the bribe took place and influenced the outcome of the contract does not require the court to decide whether or not to give legal effect to an official act of Nigeria in is own territory.

-       Another point:

• Kirkpatrick argues that the court is being too rigid and technical; the whole point of Sabbatino is that the courts don’t want to embarrass foreign governments, and in this case the court might have to decide that the Nigerian government took a bribe – this is a very embarrassing decision!
• The court says that “The act of state doctrine does not establish an exception for cases and controversies that may embarrass foreign governments, but merely requires that, in the process of deciding, the acts of foreign sovereigns taken within their own jurisdiction shall be deemed valid.”
  • In Sabbatino, the court discussed embarrassment in cases where the act of state doctrine applies anyway

-       The decisions since Sabbatino have tended to limit the act of state doctrine, and courts do not seem eager to expand it.

Rule:  The Court says that the act of state doctrine applies only when the case turns on whether the court gives legal effect to the act of a foreign state in its own territory.