The foreign act of state doctrine and international arbitration

Development summary

This article addresses the largely novel question whether the foreign act of State doctrine can operate in international arbitration. It considers whether the doctrine may restrict tribunals’ power to adjudicate on State acts, be invoked when challenging an award, or serve as a defence to the enforcement of arbitration agreements and awards. After reviewing conflicting English case law, the authors argue that the doctrine’s constitutional and policy foundations—respect, comity, non-interference and separation of powers—do not translate to arbitration, and that major jurisdictions such as the US and France reject its application in this setting; they also suggest contractual wording to exclude the risk.