National Petrochemical Company Of Iran v. The M/T Stolt Sheaf (1988)

Cf. National Petrochemical, 860 F.2d at 555-56 (court might boggle at “ad hoc, pro hoc vice ” directive of the government).

While unrecognized regimes are generally precluded from appearing as plaintiffs in an official capacity without the Executive Branch's consent, see Banco Nacional v. Sabbatino, 376 U.S. 398, 410-11 , 84 S.Ct. 923, 931 , 11 L.Ed.2d 804 (1964); National Petrochemical Co., 860 F.2d at 554-55, there is no bar to suit where an unrecognized regime is brought into court as a defendant.

While unrecognized regimes are generally precluded from appearing as plaintiffs in an official capacity without the Executive Branch’s consent, see Banco Nacional v. Sabbatino, 376 U.S. 398, 410-11 , 84 S.Ct. 923, 931 , 11 L.Ed.2d 804 (1964); National Petrochemical Co., 860 F.2d at 554-55, there is no bar to suit where an unrecognized regime is brought into court as a defendant.

National Petrochemical Co. of Iran v. M/T Stolt Sheaf, 860 F.2d 551, 553 (2d Cir.1988), cert. denied, 489 U.S. 1081 , 109 S.Ct. 1535 , 103 L.Ed.2d 840 (1989).

National Petrochemical Co. of Iran v. M/T Stolt Sheaf, 860 F.2d 551, 553 (2d Cir.1988), cert. denied, 489 U.S. 1081 , 109 S.Ct. 1535 , 103 L.Ed.2d 840 (1989). 37 According to international law, a sovereign state has certain well accepted capacities, rights and duties: 38 (a) sovereignty over its territory and general authority over its nationals; 39 (b) status as a legal person, with capacity to own, acquire, and transfer property, to make contracts and enter into internatio…

Sabbatino, 376 U.S. at 410 , 84 S.Ct. 923 ; see also National Petrochemical, 860 F.2d at 554-55 (“The power to deal with foreign nations outside the bounds of formal recognition is essential to a president’s implied power to maintain international relations.”).

See also Nat’l Petrochemical Co. of Iran v. M/T Stolt Sheaf, 860 F.2d 551 , 553 (2d Cir. 1988) (“[A] state derecognizes a governmental regime when it recognizes another regime as the legitimate government of that state.” (quoting Restatement (Third) of the Foreign Relations Law of the United States § 203 cmt. f (1987))); 2 Ved P. Nanda et al., Litigation of International Disputes in U.S. Courts § 11.11 (2019) (“Where the United States recognizes the governmental regime regar…

See also Nat’l Petrochemical Co. of Iran v. M/T Stolt Sheaf, 860 F.2d 551 , 553 (2d Cir. 1988) (“[A] state derecognizes a governmental regime when it recognizes another regime as the legitimate government of that state.” (quoting Restatement (Third) of the Foreign Relations Law of the United States § 203 cmt. f (1987))); 2 Ved P. Nanda et al., Litigation of International Disputes in U.S. Courts § 11.11 (2019) (“Where the United States recognizes the governmental regime regar…

Although the President and Congress have overlapping authority in some areas, the President has “a unique role 8 See, e.g., Dep’t of the Navy v. Egan, 484 U.S. 518, 529 (1988) (“The Court also has recognized the generally accepted view that foreign policy [is] the province and responsi- bility of the Executive.”); Haig v. Agee, 453 U.S. 280 , 293–94 (1981) (same); Zivotofsky v. Kerry, 135 S. Ct. 2076 , 2097–2101 (2015) (Thomas, J., concurring in the judgment in part and diss…

NPC, 860 F.2d at 555.

The Second Circuit has recently held that a non-recognized government could sue in a U.S. Court because the executive branch had “evinced a willingness to permit [the government] to litigate its claims in the U.S. forum.” National Petrochemical Co. of Iran v. The M/T Stolt Sheaf, 860 F.2d 551, 555 (2d Cir.1988), cert. denied, 489 U.S. 1081 , 109 S.Ct. 1535 , 103 L.Ed.2d 840 (1989).

Desperate for United States supplies, the plaintiff, National Petrochemical Co. (“NPC”), an instrument of the Iranian government, tried to circumvent the embargo “by entering into an illegal scheme to purchase the needed chemicals through a series of middlemen....” National Petrochemical Co. of Iran v. The M/T Stolt Sheaf, 860 F.2d 551, 552 (2d Cir.1988).

See Allied Bank Int’l v. Banco Credito Agricola de Cartago, 757 F.2d 516 , 521 n.2 (2d Cir. 1985) (“This estimation [of the applicability of the act of state doctrine] may be guided but not controlled 4138 SAREI v. RIO TINTO, PLC much weight to give such statements, two Second Circuit cases suggest that the executive statements should be reviewed for “arbitrariness.” In National Petrochemical Co. of Iran v. M/T Stolt Sheaf, 860 F.2d 551 , 555 (2d Cir. 1988), the court found …

See, e.g., Nat'l Petrochemical Co. of Iran v. The M/T Stolt Sheaf, 860 F.2d 551 , 553 (2d Cir.1988) (noting that an incident to the executive's constitutional powers is the President's "exclusive authority to recognize or refuse to recognize a foreign state or government and to establish or refuse to establish diplomatic relations with it"); see also United States v. Al-Hamdi, 356 F.3d 564, 572-73 (4th Cir.2004) (holding that State Department's certification that an individu…

See, e.g., Nat’l Petrochemical Co. of Iran v. The M/T Stolt Sheaf, 860 F.2d 551 , 553 (2d Cir.1988) (noting that an incident to the executive’s constitutional powers is the President’s “exclusive authority to recognize or refuse to recognize a foreign state or government and to establish or refuse to establish diplomatic relations with it”); see also United States v. Al-Hamdi, 356 F.3d 564, 572-73 (4th Cir.2004) (holding that State Department’s certification that an individu…