The foreign act of state doctrine and international arbitration

The foreign act of State doctrine limits the subject-matter jurisdiction of English (and some other common law) courts to sit in judgment on the sovereign acts of foreign States. The article examines a largely novel question whether the doctrine also applies in international arbitration. Can the doctrine limit the power of tribunals to adjudicate on State acts? Can it be raised as a ground for challenging an arbitral award or as a defence against the enforcement of arbitration agreements and arbitral awards? The article discusses the conflicting English case law and argues that the constitutional and policy reasons underpinning the doctrine—respect, comity, non-interference/non-intervention, and separation of powers—are inapplicable to arbitration such that the doctrine should not apply in arbitration. The article also offers ways to mitigate the risk of the doctrine being found to apply in arbitration, by offering contractual language to exclude its applicability. A comparative analysis reveals that major jurisdictions like the US and France reject the doctrine's applicability in arbitration. It is argued that this could be a relevant factor in the choice of the arbitral seat, mitigating against (or in favour of) London as a seat in cases involving challenges to acts of State.