Does the Foreign Act of State doctrine apply at all when the foreign state itself seeks adjudication? Joseph Dyke & Anastasia Medvedskaya explore a tricky question for the English courts
- The Foreign Act of State doctrine acts as a bar to the exercise of the English courts’ adjudicative jurisdiction.
- Previous decisions had been clear that, if the doctrine was engaged by a case’s subject matter, it was not legally capable of being waived.
- The Commercial Court has found that the doctrine does not apply in circumstances where it is a foreign state that positively seeks the English courts’ adjudication.
When it is engaged, the Foreign Act of State doctrine (FAOS) is a substantive bar to the English courts’ adjudicative jurisdiction. Cases concerning FAOS often have important political content (or ramifications), and thus it can sometimes have controversial results. But does FAOS apply at all when the foreign state itself seeks adjudication?
In Federal Republic of Nigeria v JPMorgan Chase Bank NA [2022] EWHC 1447 (Comm), [2022] All ER (D) 52 (Jun),
