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?
o 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
o 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 courts 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 dont 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.
o 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.