Friday, November 3, 2023

Massimo Lando on Reframing the English Foreign Act of State Doctrine (The Modern Law Review)

"Reframing the English Foreign Act of State Doctrine"
Massimo Lando
The Modern Law Review (Vol. 86, no. 5, Sep 2023)
Published online: 29 September 2023
Abstract: This article proposes a way to reframe the English foreign act of State doctrine. The doctrine is an established rule of English common law but its contours and application remain ill-defined, despite the Supreme Court's restatement in Belhaj v Straw. The doctrine in its current form emerges from the accretion of precedents over some 350 years, but still lacks a unifying framework bringing its different strands together. This article argues that English courts should reframe the doctrine by reference to the distinction between elements of a rule that are embedded in its definition, called ‘limitations’, and elements of a rule that exist separately from it, called ‘exceptions’. This distinction has been developed in legal philosophy to classify the elements of wrongs as definitional elements, constitutive of liability, and defences, defeating liability. Reframed according to this distinction, the English foreign act of State doctrine can be streamlined into one, single rule, instead of the three rules set out in Belhaj v Straw. This reframing has implications for the doctrine's characterisation as one of justiciability, abstention or restraint, and its compatibility with the duty to do justice, including under the European Convention on Human Rights.