1 Although C.A.V. was organized under Cuban law, over ninety percent of its stockholders were residents of the United States (E. 154).

“After the court of appeals’ decision affirming the district court’s judgment, the receivership was terminated. See Schwartz v. Compania Asucarera V ertientes-Camaguey de Cuba, 39 Misc. 2d 63. The suit against the receiver is therefore now moot.

3 In invoking this exception, the district court relied, in large part upon opinions of commentators and textwriters. Some British and American writers in the field of international law have advocated recently that the act of state doctrine should not apply to governmental acts in violation of. international law. See, e.g., 1 Oppenheim, International Law, 267-270 (8th ed., Lauterpacht, 1955); Wortley, Expropriation in International Law, 33 Grotius Society Transactions 25 (1947); Morgenstem, Foreign Acta Contrary to International Law, 4 Int’l L. Q.. 326 (1951); Mann, International Delinquencies Before Municipal Courts, 70 Law Q. Eev. 181 (1954) ; Hyde, The Act of State Doctrine And The Ride of Law, 53 Am. J. Int’l L. 635 (1960); Zander, The Act of State Doctrine, 53 Am. J. Int’l L. 826 (1959); Association of the Bar of the City of New York, Committee On International Law, Report, A Reconsideration of the Act of State Doctrine in United States Courts (1959); Domke, Foreign Nationalisations, 55 Am. J. Int’l L. 585 (1961); Coerper, The Act of State Doctrine in the Light of the Sabbatino Case, 56 Am. J. Int’l L. 143 (1962); Cohn, Ex Injuris Jus If on Oritur, 3 Santa Clara Lawyer, 23, 29 (1962) ; Note, Castro Government in American Courts, 75 Harv. L. Rev. 1607 (1962); Stevenson, The Sabbatino Case—Three Steps Forward and Two Steps Back, 57 Am. J. Int’l L. 97 (1963).

4 Whether a different rule should prevail in the case of an unrecognized foreign government is a question which is not presented here and which we put aside. See Salimoff & Co. v. Standard Oil Co., 262 N.Y. 220, 186 N.E. 679; The Maret, 145 F. 2d 431 (C.A. 3 ) ; Latvian State Carqo & Passenger S.S. Line v. McGrath, 188 F. 2d 1000 (C.A.D.C); Williams v. Brufiy, 96 U.S. 176.

5 As to the rule regarding extraterritorial acts of state, see Sokoloff v. National City Bank, 239 N.Y. 158; Vladikavkazsky Ry. v. New York Trust Co., 263 N.Y. 301); Bollock v. Societe Generate Pour Favoriser, Etc., 263 App. Div. 601; Restatement, Foreign Relations Law of the United States, § 46 (Proposed Official Draft, 1962).

6 A significant English decision of this period was that of the House of Lords in Duke of Brunswick v. King of Hanover, (1848) 2. H.L.C. 1, 17, where the House refused to examine the validity of an executive act of King William IV, confirmed by the German Diet, which placed the Duke of Brunswick under guardianship. The Lord Chancellor there stated, “whether it be an act right or wrong, whether according to the constitution of that country or not, the Courts of this country cannot sit in judgment upon an act of a Sovereign, effected by virtue of his sovereign authority abroad.” The other opinions in the case contained like expressions.

For additional early cases apparently recognizing that the acts of sovereigns done within their own territory will not be judged by the court of another country, see, L’Invincible, 1 Wheat, 238, 252-253, 260-261, and Hatch v. Baca, 7 Hun. 596. See also the argument of counsel in Waters v. Gollot, 2 Dall. 247, 248 (Pa.), and the Attorney General’s opinion in regard to the case, 1 Ops. A.G-. 45. The Exchange, 7 Cranch 116, 135, is also often cited as a case recognizing the act of state doctrine. While the opinion of the Court, by Chief Justice Marshall, principally dealt with a foreign soverign’s personal immunity from suit in our courts, the Chief Justice’s opinion also recognized that the acts of the sovereign done within its own territory were immune from scrutiny.

7 Although the applications of the doctrines are of course distinct, the act of state doctrine bear similarity to the rule that a foreign sovereign enjoys immunity from suit in American courts. See National City Bank v. Republic of China, 348 U.S. 356, 358-359. Some commentators have suggested that the act of state doctrine grew out of the sovereign immunity principle and that the early decisions often cited for the act of state rule, i.e., those prior to the American Banana case, were decided on or can be explained on sovereign immunity grounds. See, e.g.. Comment, “Act of State” Immunity, 57 Yale L.J. 108, 112 (19-17); Re, Foreign Confiscations in Anglo-American Law 1N.Y. 19511 21-22: Zander, The Act of State Doctrine. 53 Am. .1. Int’l L. 826, 828-830 (1959). The two principles were, however, recognized quite early as being distinct. Gf., The Exchange, 7 Cranch 116, 135. It is clear that the opinion in Blad v. Bamfield, supra, 3 Swan. 604, 36 Eng. Kep. 992, and the opinion in Ware v. Hylton, supra, 3 Dall. 199, were concerned solely with the immunity of a sovereign’s act from judicial scrutiny, not with the immunity of the sovereign itself, for in neither case were the sovereign or its official party. The same is true of Williams v. Bruffy, supra, 96 U.S. 176. While in such cases as VIn-vincible, supra, 1 Wheat. 238, 252-253; The Santissima Trinidad, supra, 1 Wheat. 283, 336; Duke of Brunswick v. King of Hanover, supra, [1818] 2 H.L.C. 1; Hatch v. Baez, 7 Hun. 596; and Vnderhill v. Hernandez, supra, 168 U.S. 250, officials of foreign sovereigns were parties, the opinions were not placed entirely on this narrow ground, but recognized the separate immunity of the sovereigns acts as well. See also the opinion of the Circuit Court of Appeals in Vnderhill v. Hernandez, 65 Fed. 577, 580, pointing out that the decision in the Duke of Brunswick case “was put, not upon the personal immunity of the sovereign from suit, but upon the principle that no court in England could sit in judgment upon the act of a sovereign * * *.”

8 Luther v. Sagor, [1921] 3 K.B. 532; Princess Pahy Olga v. Weiss, [1929] 1 K.B. 718.

9 See, e.g., Salimoff it. Co. v. Standard Oil Co., 262 N.Y. 220, 186 N.E. 679; Dougherty v. Equitable Life Assurance Soc, 266 N.Y. 71, 193 N.E. 897.

10 United States v. Belmont. 301 U.S. 324; United States v. Pink. 315 U.S. 203. The Court in these two cases refused to examine the validity of the nationalizations by the Soviet Union and held that the title to property derived therefrom must be respected by American courts. Belmont and Pink were not strictly “act of state” cases, for they, unlike the present case, involved an extra-territorial attempt to expropriate property situated outside of Russia at the time of the expropriations. Nevertheless, because of the circumstances surrounding our government’s recognition of the Soviet Government, the Court held that United States foreign policy favored recognition of the particular acls. Because of this, the Court proceeded to consider the cases as being no different than ones involving territorial expropriations, and reaffirmed tile applicability of the act of state rule to sucli circumstances.

11 Eastern States Petroleum Co. v. Asiatic Petroleum, Corp., 28 F. Supp. 279 (S.D.N.Y.).

12 Banco de Espana v. Federal Rexerce Bank, 114 F. 2d 438 (C.A.2).

13 Holeer v. Deutsche Reichabahn-Qesettschaft, 277 N.Y. 474, 14 N.E. 2d 798; Bernstein v. Van Heyghen Freres Societe Anonyms, 168 F. 2d 246 (C.A. 2), certiorari denied, 332 U.S. 772; Bernstein v. N.V. Nederlandsche-Amerikaansche, Etc., 173 F. 2d 71, 210 F. 2d 375 (C.A. 2).

14 Pons v. Republic of Cuba, 294 F. 2d 925 (C.A.D.C.), certiorari denied, 368 U.S. 960.

15 See e.g., Hewitt v. Speyer, et ah, 250 Fed. 367 (C.A. 2) (alleged breach of contract by government of Ecuador); Earn Line SJS. Co. v. Sutherland S.S. Co., 254 Fed. 126 (S.D.N.Y.), affirmed sub nam. The Claveresk, 264 Fed. 276 (C.A. 2) (requisition of a vessel by the British Government); Union Shipping A Trading Co. v. United States, 127 F. 2d 771 (C.A. 2) (order of a French port captain directing the movements of a vessel); United States ex rel. Steinvorth v. Watkins, 159 F. 2d 50 (C.A. 2) (revocation of citizenship); United States ex rel. Von Heymann v. Watkins, 159 F. 2d 650 (C.A. 2) (alleged unlawful arrest by foreign government officials).

16 See, e.g., United States of Mexico v. Batsafsehe Petroleum Maatschappij, [1919-1942] Ann. Dig. Pub. Int’l L. Cases 16, 17 (Holland) (“The Court is not qualified to examine whether and how far decrees of the Executive of a foreign State are legally valid * * *”); Schweizerische Levensversiclterungs- Und Rentenanstall v. Elkan, [1953] Int’l L. Eep. 36 (Switzerland, Federal Tribunal) ; Anglo-Iranian Oil Company v. Idemitsu Kosan Kabushiki Kaisha, [1953] Int’l. L. Rep. 305 (High Court of Tokyo); De Keller v. Maison De La Pensee Francaise, [1954] Int’l L. Eep. 21 (France, Tribunal Civil de la Seine); Anglo-Iranian Oil Company Ltd. v. S.U.P.O.R. Company, [1955] Int’l L. Eep. 19 (Italy, Court of Venice); Anglo-Iranian Oil Company Ltd. v. S.U.P.O.R. Company, [1955] Int’l L. Eep. 23 (Italy, Civil Court of Rome); Hitch v. Banqve Franco-Serbe, [1956] Int’l L. Rep. 19 (France, Tribunal de Commerce de la Seine). See Domke, Indonesian Nationalisation Measures Before Foreign Courts, 54 Am. J. Int’l L. 305 (1960). Also, compare Anglo-Iranian Oil Co., Ltd. v. Jafrate [1953] 1. WX.E. 246, [1953] Int’l L. Rep. 316, with In re Helbert Wagg A Co. Ltd., [1956] Ch. 323.

This is not to suggest that civil law countries re-gard the act of state principle as an absolute bar. Generally, they reserve the right to refuse to give effect to acts repugnant to the policy of the forum.

17 See note 7, supra.

18 The allegations regarding this conduct made before the district court are summarized in the court of appeals’ opinion (R. 157-168).

19 In writings advocatiog that municipal courts should examine foreign acts of state according to principles of public international law, it is sometimes stated that no case precludes such an examination under international law. The Oetjen case is either ignored or explained away as not in fact involving a violation of international law. See, e.g.. Restatement, Foreign Relations Law of the United States (Proposed Official Draft, 1962) $43, Reporter’s Note 3; 1 Oppenheim, International Lair (8th ed., Lauterpacht, 1955) 267-270; Mann, International Delinquencies Before Municipal Courts, 70 Law Q. Rev. 181, 199 (1954); Zander,TJw Act of State Doctrine. 53 Am. J. Int’l L. 826, 843-844 (1959).

20 The embargo was imposed in February 1962 (see 31 C.F.R. 515.201) and the “freeze” in July1963 ({supra, p. 3).

21 Shapleigh v. Meir, supra, 299 U.S. at 471.

22 See generally Staff Memorandum, Committee on Foreign Relations, on Claims Programs Administered by Foreign Claims Settlement Commission, 88th Cong., 1st Sess. (Comm. Print, March 1963). Some of the figures contained therein have been brought up to date by later information furnished by the Department of State.

23 Settlement of Pecuniary Claims against Yugoslavia, 62 Stat. 2658; TIAS 1803 (1948).

24 Settlement of Claims of United States Nationals and Other Financial Matters, 11 U.S.T. 317; TIAS 4451 (1960).

25 Claims Agreement between United States and Bulgaria, — U.S.T. — ; TIAS 6387, Sofia, July 2, 1963.

26 Settlement of Claims of United States Nationals, 11 U.S.T. 1953; TIAS 4545 (1960).

27 Claims Convention, 1 U.S.T. 685; TIAS 2129 (1950).

28 Convention between United States and Mexico, Sept. 8, 1923, 43 Stat. 1730; TS 678 (1923): Convention between United States and Mexico, Sept. 10, 1923. 43 Stat. 1722; TS 676 (1923) ; Claims Convention, 56 Stat. 1347; TS 980 (1941). See also Report, to the Secretary of State, American-Mexican Claims Commission, 1948, Dept. State Publ. 2859 (1848).

29 Note of Secretary of State Hull, July 21, 1938, 3 Hackworth, Digest of Inter Mtionol Law, 655, 656.

30 Exchange of Notes of Expropriation of Petroleum Property, 55 Stat. 1554; EAS 234 (1941); Agreement Relating to Payment for Expropriated Petroleum Properties, 58 Stat. 1408, EAS 419 (1943).

31 28 Fed. Kef,’. No. 132, pp. 6974-0985 (July 9, 1963) ; 31 C.F.R., Part 515. In the event of a judgment in favor of petitioner, Banco Kacional, in this case, these Regulations would prohibit the execution or other enforcement of such a judgment without a license by the Office of Foreign Assets Control of the Treasury Department. Tt would not be ill accordance with present Treasury policy to license any transfer which would have the effect of unblocking the sugar’s proceeds should petitioner ultimately prevail here. However, in the view of the Treasury, the Regulations impose no barrier to the continuation of the litigation in this case, nor the entry of a judgment for petitioner. See the exchange of correspondence between the Solicitor General and Stanley L. Summerfield, Acting Director of the Office of Foreign Assets Control, reproduced in the Appendix to this brief.

32 163 F. 2d at 249. The court’s opinion said: “[T]he plaintiff’s difficulty lies * * * because of that other doctrine which we have mentioned: i.e., that no court will exercise its jurisdiction plaintiff’s difficulty lies * * * because of that other doctrine which we have mentioned: i.e., that no court will exercise its jurisdiction to adjudicate the validity of the official acts of another state. This the plaintiff acknowledges as generally true, but he says that it presupposes that the state of the forum has not acted to relieve its courts of restraint upon the exercise of their jurisdiction; and that our own government has already so acted. This is the remaining and the critical issue in the case; and we have to examine what those actions have been.” Id. at 249-250.

33 The Bernstein exception has met with general approval. See, e.g., Restatement, Foreign Relations Law of the United States, §44 (Proposed Official Draft, 1962); Katzenbach, Conflicts an an Unruly Horse, 65 Yale L.J. 1087, 1152-1153 (1956); Reeves, Act of State Doctrine and the Rule of Law—A Reply, 54 Am. J. Int’l L. 141, 151-152 (1960). But cf., Falk, A Tlieory of the Participation of Domestic Courts in, the International Legal Order, 16 Rutgers L. Rev. 1 (1961).

34 We are so advised by the Legal Adviser to the Department of State, after a search of the files of the Department.

35 The correspondence is reproduced in Appendix B to the Memorandum for the United States submitted to this Court on the Petition for a Writ of Certiorari in this case, pp. 14-43.

36 The Solicitor General’s reply merely acknowledged receipt of the letter.

37 See supra, p. 37.

38 The Bar Association’s pioposal is also directly contrary to the Bernstein opinion itself, where Judge Hand said, in this regard, “the only relevant consideration is how far our Executive has indicated any positive intent to relax the doctrine that our courts shall not entertain actions of the kind at bar; some positive evidence of suck an intent bemo necessary.” 163 F. 2d 246 at 251. [Emphasis added.]