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 alosing bidder- Act of State Doctrine analysis

Does the act of state doctrine arise in this case? In other words, does the outcome of the caseturn on whether the court gives legal effect to the act of the foreign government in its ownterritory?

o The lower court says that it does for Tectonics to win, it would have to prove that theNigerian government took a bribe, and, because of that bribe, awarded the job toKirkpatrick

Remember: it does not matter that the Nigerian government is not a party tothe suit, because the act of state doctrine may come into play where none ofthe parties is a state so long as the outcome of the case depends on whether acourt 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 foreignsovereign. When that question is not in the case, neither is the act of statedoctrine. That is the situation here. Regardless if what the courts factualfindings may suggest as to the legality of the Nigerian contract, its legality issimply not a question to be decided in the present suit.

The determination as to whether the bribe took place and influenced theoutcome of the contract does not require the court to decide whether or not togive 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 Sabbatinois that the courts dont want to embarrass foreign governments, and in this case the courtmight have to decide that the Nigerian government took a bribe this is a very embarrassingdecision!

The court says that The act of state doctrine does not establish an exception for cases andcontroversies that may embarrass foreign governments, but merely requires that, in theprocess of deciding, the acts of foreign sovereigns taken within their own jurisdiction shall bedeemed valid.

o In Sabbatino, the court discussed embarrassment in cases where the act of statedoctrine applies anyway

- The decisions since Sabbatino have tended to limit the act of state doctrine, and courts do notseem eager to expand it.

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

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