1 For evaluation of the role of national courts in law ‘creation’ as well as law ‘enforcement’, see Ch 5.
2 Denza, Diplomatic Law (3rd edn, 2008), 256.
3 Satow, Satow’s Guide to Diplomatic Practice (5th edn, 1979), Ch 2.1), (6th edn, 2009) Sir Ivor Roberts Ch 4.5. For a short history of diplomacy see Ch 1.
4 Gentilis, De Legationibus Book II, Chs XIII, XVII, XVIII, XXI.
5 Bynkershoek, De Foro Legatorum, Ch VIII.
6 Lesley, Bishop of Ross’ case, McNair International Law Opinions (1956) Vol I, 186. Denza, Diplomatic Law (3rd edn, 2008), 256 at 210–11.
7 Triquet v Bath [1764] 3 Burr 1478.
8 Magdalena Steam Navigating Co v Martin (1859) 2 El & 2 El 94 at 116. Jones, ‘Immunities of Servants of Diplomatic Agents and the Statute of Anne C 12’ (1940) 22 J of Company Law 19.
9 Taylor v Best (1854) 14 CB 487 at 519.
10 De L’Esprit des Lois, xxvi, Ch 21, cited in Satow, Satow’s Guide to Diplomatic Practice (5th edn, 1979), (6th edn, 2009), Ch 14.
11 Radwan v Radwan (No 2) [1972] 3 WLR 939, [1972] 3 All ER 1026.
12 Duke of Brunswick v King of Hanover (1848) 2 HL, Cas 1; De Haber v Queen of Portugal (1851) 17 QB 171.
13 ADI 62-I (1987) ‘Contemporary Problems concerning Immunity of States’: Brownlie, Preliminary Report, 22, para 24.
14 ADI Vol II (1885–91) 1181, 1194 (1891 Hamburg Resolution). See now the 2001 Vancouver Resolution of the Institut, ADI 69 (2000–01), 742, Art 15-1 which provides that a head of government of a foreign State enjoys the same inviolability and immunity from jurisdiction as a head of State.
15 The Schooner Exchange v McFaddon (1812) 7 Cranch at 143, 145; 11 US 116 (1812).
16 The Schooner Exchange v McFaddon (1812) 7 Cranch 116 at 143, 145 (hereinafter: The Schooner Exchange). See also Ch 16.
17 The Schooner Exchange.
18 Dellapenna, Suing Foreign Governments and their Corporations (2nd edn, 2002), 2.
19 The Schooner Exchange, 143, 145.
20 Deference to the executive provides a possible explanation for the decision in Santissima Trinidad, 20 US (7 Wheat 283 1822) which, in direct conflict with the Schooner Exchange, denied immunity to a Spanish ship seized on the high seas and required Spain to prove its title.
21 The Parlement Belge (1878–79) IV Prob Div 129, Sir Robert Phillimore (1879); (1879–90) V Prob Div 197, CA, Brett, James, and Baggally LJJ.
22 Strictly to be reported as Phillimore J, but subsequent judges consistently refer, perhaps by reason of his eminence, to ‘Sir Robert Phillimore’.
23 Phillimore’s decision therefore stands to the present day as authority that a treaty which has not been incorporated by Act of Parliament cannot affect acquired rights in English law.
24 Swiss-Israel Trade Bank v Government of Salta [1972] 1 Lloyd’s Rep 497 at 503.
25 Per Sir Robert Phillimore, The Parlement Belge (1878–79) IV Prob Div 147–9.
26 Merchandise and passengers for profit were also carried by the mail packet. The Parlement Belge (1878–9) IV Prob Div 129 at 148–9.
27 The Cristina [1938] AC 485 at 491. Today immunity is increasingly challenged where it serves to bar inquiry into unlawful conduct. In this context, it is of interest to note that Lord Wright emphatically repudiated the argument that the seizure of the Cristina in British territorial waters ‘constituted a wrongful act which was a breach of international comity and excluded a right to claim the reciprocal comity of immunity’. Rejecting the contention that the ‘implied licence’ upon which Marshall CJ in the Schooner Exchange based immunity could be withdrawn in the event of unlawful seizure, Lord Wright asserted the immunity was based not on the fiction of a licence but on the independent status in international law of the foreign sovereign: ‘This gives the sovereign, so far as concerns courts of law, an immunity even in respect of conduct in breach of municipal law. The remedy, if any, is prima facie by diplomatic representation or other action between the sovereign States, not by litigation in municipal courts’ (509).
28 Mighell v Sultan of Johore [1894] 1 QB 149.
29 Duke of Brunswick v King of Hanover (1848) 2 HL Cas 1.
30 Mighell v Sultan of Johore [1894] 1 QB 149 at 161.
31 The Porto Alexandre [1920] P 30. See The Jupiter [1924] P 236 where proceedings in rem were set aside against a ship in the possession and subject to the control of the Soviet government, without any proof of ownership on the State’s behalf.
32 The Porto Alexandre [1920] P 30 at 36.
33 The Porto Alexandre [1920] P 30 at 39.
34 Strictly the rule was not absolute in that immunity was no bar to proceedings against a foreign State in respect of immoveable property located in England or claims in relation to succession or the administration of trust property located in England. See Ch 13.
35 Sultan of Johore v Abubakar Tunku Aris Bendahar [1952] AC 318 at 342.
36 Krajina v Tass Agency [1949] 2 All ER 274 at 280.
37 Mr CJ Hamson and Professor Hersch Lauterpacht whose annexed statements of individual position weakened the impact of the Report.
38 Interim Report of Interdepartmental Committee on State Immunities dated 13 July 1951, Public Record Office, CAB 134 (120). The members of the Committee were Sir Eric Beckett, Legal Adviser, Foreign Office; Mr DW Dobson, Lord Chancellor’s Office, Board of Trade, Barnes, Treasury Solicitor; Sir Kenneth Robertson-Wray, Commonwealth Relations Office; EJWO Stacey, Board of Trade; Professor H Lauterpacht; CJ Hamson, Trinity College, Cambridge. For the government’s decision to take no further action, see Mr Nutting, Under Secretary of State for Foreign Affairs, HC, Hansard, Vol 511, Col 81, 13 February 1953.
39 Preliminary draft of Report, Interdepartmental Committee on State Immunities 1952, paras 11, 20, CAB 134/121 item 20. The retention of absolute immunity was advanced by reference to a somewhat ludicrous example of the protection it would provide if a branch office of the Ministry of Information in an allied country was sued in time of war (para 12).
40 Preliminary draft of Report, Interdepartmental Committee on State Immunities 1952, paras 23–4.
41 Baccus SRL v Servicio Nacional del Trigo [1957] 1 QB 438.
42 Baccus SRL v Servicio Nacional del Trigo [1957] 1 QB 438. See Ch 7 where the ruling that a constituent unit of a federation enjoys immunity under SIA, s 14 is now questioned.
43 Mellenger v New Brunswick Development Corpn [1971] 2 All ER 593; 1 WLR 604. Cf now Alameyeseighe [2005] EWHC 2704.
44 Baccus SRL v Servicio Nacional del Trigo [1957] 1 QB 438 at 463; 28 ILR 160.
45 Trendtex Trading Corpn v Central Bank of Nigeria [1977] QB 529; 64 ILR 111.
46 Baccus SRL v Servicio Nacional del Trigo [1957] 1 QB 438 at 464; 28 ILR 160.
47 Rahimtoola v Nizam of Hyderabad [1958] AC 379.
48 Thai-Europe Tapioca Service Ltd [1975] 1 WLR 1485; 64 ILR 81. Unsupported by his colleagues, Denning MR in this case again set out the general principle as ‘undoubtedly that, except by consent the courts of this country will not issue process so as to entertain a claim against a foreign sovereign for debt or damages’, and described four exceptions to this principle. In addition to the well-recognized exceptions for proceedings relating to land situated in England, and to an English trust fund, he proposed an exception ‘in respect of services rendered to its property’ in England, and a fourth one where a foreign sovereign ‘enters into a commercial transaction with a trader here and a dispute arises which is properly within the territorial jurisdiction of our courts’.
49 Trendtex Trading Corpn v Central Bank of Nigeria [1977] 1 QB 529. See discussion below under Proceedings in rem.
50 The Philippine Admiral [1977] AC 373; [1976] 1 All ER 78; 64 ILR 90.
51 Swiss-Israel Trade Bank v Government of Salta [1972] 1 Lloyd’s Rep 497.
52 Trendtex Trading Corpn v Central Bank of Nigeria [1977] QB 529; 64 ILR 111. For comment, see Higgins, ‘Recent Developments in the Law of Sovereign Immunity in the UK’ (1977) 71 AJIL 423 at 425–30; Kerr, ‘Modern Trends in Commercial Law and Practice’ (1978) 41 Modern Law Rev 41 (1978) 15–17; White, ‘State Immunity and International Law in English Courts’ (1977) 26 ICLQ 674–80.
53 The first ground, on which the court was unanimous, was that the Central Bank of Nigeria though an agency of the State was not entitled to immunity. See Ch 10.
54 Trendtex Trading Corpn v Central Bank of Nigeria [1977] QB 529; 64 ILR 111, at 528.
55 I Congreso del Partido [1983] 1 AC 244; 64 ILR 307. Lord Wilberforce also affirmed ‘the advance made by The Philippine Admiral with the reservation that the decision was perhaps unnecessarily restrictive in, apparently, confining the departure made to actions in rem’.
56 The Schooner Exchange.
57 Kawananakao v Polyblank 205 US 349, 353 (1907) (Holmes CJ).
58 Principality of Monaco v Mississippi 292 US 313, 322–3 (1934) (Hughes CJ).
59 Berizzi Bros Co v SS Pesaro 271 US 562, 574 (1925) (The Pesaro) (Van Devanter J).
60 The Carlo Poma 259 F.369 (2nd Cir 1919).
61 The Roseric 254 F.154 (1918).
62 Mexico v Hoffman, 324 US 30 (1945).
63 Berizzi Brothers Co v Steamship Pesaro 255 US 216 (1921).
64 The Ucayali, Galban Lobo Co SA v Compañia Peruana De Vapores y Dique. Del Callao et al, ex parte Republic of Peru 318 US 578, 588–9 (1943).
65 Mexico v Hoffman 324 US 30, 35–6 (1945).
66 Sucharitkul, State Immunities and Trading Activities (1959), 189–90.
67 ‘Changing Policy Concerning the Granting of Sovereign Immunity to Foreign Governments’, Letter to US Acting Attorney-General, 19 May 1952 (1952) 26 US Department of State Bulletin 984 (‘the Tate letter’).
68 The letter acknowledged ‘agreement by proponents of both theories, supported by practice, that sovereign immunity should not be claimed or granted in actions with respect to real property (diplomatic and perhaps consular property excepted) or with respect to the disposition of the property of a deceased person even though a foreign sovereign is the beneficiary’: the Tate letter, 984–5.
69 The Tate letter, 984–5.
70 Mr McGregor’s letter of 25 November 1918, Hackworth II-129.
71 In fact, there was no change to immunity from execution: Weilemann and McCloskey v The Chase Manhattan Bank, 21 Musc, 2d 1086, 192 NYS 2d (NY Sup Ct (1959)), 28 ILR 165.
72 See Jessup, ‘Has the Supreme Court Abdicated One of its Functions?’ (1946) 40 AJIL 168.
73 See eg Rich v Naviera Vacuba SA, 295 F.2d 24 (4th Cir 1961); Spacil v Crowe, 489 F.2d 614 (5th Cir 1974); ‘Foreign official Immunity after Samantar: a US Govt Perspective’ Vanderbilt JIL 44 (2011) 1142 at 1145–6.
74 Foreign Sovereign Immunities Act 1976 (US); State Immunity Act 1978 (UK); Foreign States Immunities Act 1985 (Australia); State Immunity Act 1982 (Canada); Immunities and Privileges Act 1984 (Malaysia); State Immunity Ordinance 1981 (Pakistan); State Immunity Act 1979 (Singapore); Foreign States Immunities Act 1981 (South Africa); Immunities and Privileges Act 1984 (No 16 of 1984) (Malawi); other small common law jurisdictions have enacted similar legislation, eg St Kitts 1979.
75 Safe Streets and Communities Act 2012, which enacts the Justice for Victims of Terrorism Act 2012 and includes amendments to the Canadian SIA. The ‘real and substantial connection’ test appears in section 4(2) of the Justice for Victims of Terrorism Act.
76 The list is to be established within six months of the section coming into force and reviewed every two years; a procedure is provided for removal of a foreign State from the list on the application in writing of a foreign State.
77 Provost René, ‘Canada’s Alien Tort Statute’, EJIL Talk, 29 March 2012, who writes by reference to the ICJ judgment in the Jurisdictional Immunities of States (Germany v Italy, Greece Intervening), ICJ Reports 2012: ‘It seems clear that Canadian courts will deny the immunity of a foreign state if it appears on the list of states sponsors of terrorism; it seems equally clear that this judicial decision will trigger the breach by Canada of its obligations under international law.’
78 Botswana, Republic of Angola v Springbok Investment (Pty) Ltd [2005] BLR 159; Kenya, Ministry of Defence of the Government of the UK v Ndegna, Kenya Ct of Appeal, 17 March 1983; 103 ILR 235; Ireland, Government of Canada v Employment Appeals Tribunal and Burke [1992] ILRM 325; 95 ILR 467 Irish Supreme Court; New Zealand, Governor of Pitcairn and Associated Islands v Sutton [1995] 1 NZLR 426; 104 ILR 508, New Zealand Ct of Appeal; Fang and Others v Jiang and Others New Zealand High Ct 21 December 2006; HC AK CIV 2004-404-5843, paras 16–20; Nigeria, Kramer v Government of Kingdom of Belgium and Embassy of Belgium [1989] 1 CLRQ 126; 103 ILR 299; Zimbabwe, Baker McCormac (Private) Ltd v Government of Kenya [1986] CR Comm (Const) 21; 84 ILR 18; ICRC v Sibandrua [2007] 28 ILJ 728 (ZS).
79 UN Legal Materials, 610.
80 Harbhajan Singh Dhalla v Union of India, Indian Supreme Ct, 5 November 1986, AIR (1987) SC 992; 92 ILR 530, cf Union of India v Syed Ashraf Hasnain Rizvi, 11 July 2011, India, Delhi High Court where, in an appeal before the Chief Justice for retirement benefits and compensation by an employee of the Iranian diplomatic mission, after citing Harbhajan and UNCSI, Art 11 relating to the exception for contracts of employment the court remitted ‘the matter to the Union of India to reconsider the matter in accordance with law after following the principles of natural justice’; see also VG Hegde, ‘Indian Courts and International Law’ (2010) 23 Leiden J Int Law 53–77.
81 Her Majesty the Queen in Right of Canada v Edelson, Final Appeal, PLA 7092/94; ILDC 577 (IL 1997).
82 Yosefov v Egypt 13 February 2011 ILDC 1771 (IL 2011): the Beersheba Court held that Egypt was entitled to immunity in respect of alleged acts of support for terrorist missile attacks from Gaza Strip. It held the tort exception did not apply to actions conducted by the State in its own territory even if allegedly causing damage in the forum State territory and that Egypt, which was not engaged in acts of terror and at peace with Israel and the rest of the world, enjoyed immunity from claims of involvement in acts of terror regarding the exercise of policy in its own sovereign territory.
83 UN Legal Materials, 564, 576.
84 Department of European, International and Comparative Law, University of Vienna; Institut des hautes études internationales, University of Geneva; British Institute of International and Comparative Law.
85 Case notes contained in journals in respect of many of these leading cases can be invaluable but reference is unfortunately absent or sparse in the case summaries.
86 Hafner, Kohen, and Breau (eds), (hereinafter Hafner) State Practice regarding State Immunities: La pratique des Etats concernant les immunités des Etats in English and French (2006), Pt II, 167–247. This publication provides a comprehensive overview of the current position relating to State immunity in Europe and its findings are referred to in the chapters on waiver, definition of the State, exceptions to immunity, and immunity from execution.
87 A note of caution is necessary, however, as to the use of the materials in this collection. Many summaries are so succinct as to be largely meaningless and without guidance from a lawyer versed in a particular country’s practice it is difficult to place general statements in proper context.
88 The chapter on the distinction between State immunity and diplomatic immunity notes ‘from the practical point of view tribunals sometimes find it difficult to distinguish between them’ with a decision made in some cases on the basis of diplomatic or consular immunity, in others on the basis of state immunity, in others on both or without any explicit invocation and even ‘it is regrettable to note … by not acknowledging immunity … in contradiction with the relevant rules of international law’ (Hafner, 58).
89 Société Prony habitations v Guinée Bissau, French, Cour de Cassation civ 1ière, 20 September 2006, RGDIP 110 (2006) 971, note Guillaume le Floch, confirming the previous decision of the Cour de Cassation.
90 Hafner, 6. Definition of the State at 6.20.
91 Poland, Polish Citizens v Embassy of Foreign State, 26 September 1990, Poland Supreme Ct, Hafner PL/1, 499; Portugal, Silva v Spanish Institute, Spanish Embassy and Spain, 9 November 1988, Lisbon District Ct, Hafner P/6, 509; see also Hafner P/1 and P/2.50; Romania, GM & TI v Embassy of P in Bucharest, 9 March 2001, Bucharest Tribunal, Hafner RO/2, 520; Russian Co v Embassy of State X, 18 January 2001, Russian Federation High Arbitration Ct, Hafner RUS/5, 526.
92 Hafner, ‘State Practice Regarding State Immunities, State Immunity regarding Employment Contracts’, 96.
93 Hafner, ‘State Practice Regarding State Immunities, State Immunity from Enforcement Measures’, 166.
94 Of the Nordic States, Sweden and Norway have ratified UNCSI (see Ch 9) and Denmark is a signatory.
95 Argentina exceptionally as a civil law jurisdiction has enacted Ley No 24,488 in 1995 on Immunidad jurisdiccional de los estados extranjeros ante los tribunalses Argentinos, translation in Dickinson et al, State Immunity: Selected Materials and Commentary, (2004), 461–4.
96 Spanish Government v Lambége and Pujol, 22 January 1849, Sirey 1830, I, 81 at 93; Dalloz, 1848, I, 5. ‘The independence enjoyed by States is one of the most universally recognised principles of international law. It follows from this principle that Governments cannot, in respect of the commitments into which they enter, be subject to the jurisdiction of a foreign State.’
97 Brown and Garner, French Administrative Law (3rd edn, 1983), 20.
98 Rousseau, Droit international public IV Les Relations internationales (1980), 8–13.
99 Trooboff, ‘Foreign State Immunity: Emerging consensus on principles’, R de C 245 (1985–V), 266–4.
100 BvG Vol 16, 27; 45 ILR 57; UN Legal Materials, 282. Lauterpacht in his seminal article (1951) 28 BYIL 220, urging the adoption in English law of a restrictive doctrine annexed a summary of the judicial practice on jurisdictional immunities of foreign States beginning with the restrictive approach of Italy, Belgium, and the Egyptian mixed courts and including Austria, France, Germany, Greece, the Netherlands, and the Scandinavian and South American countries.
101 Guttieres v Elmilik (1886), Foro It. 1886-I, 913: the Cour de Cassation in Florence held no immunity in respect of services rendered to the Bey of Tunis: ‘when these high prerogatives are not involved, and the Government as a civil body descends into the sphere of contracts and transactions so as to acquire and assume obligations, just as a private person might do, then the independence of the State is immaterial, for in such a case it is a question solely of private acts and obligations to be governed by the rules of general laws’. Cited in S Sucharitkul, State Immunities and Trading Activities (1959), 234. See also Harvard Research on ‘Competence of Courts in regard to Foreign States’ (1932) 26 AJIL (Supplement) 455 at 622.
102 Storelli v Governo della Repubblica Francese (1924) Rivista 17; (1925) 236 at 240; 2 ILR 129: ‘when a foreign State transplants itself into the national territory, it must be presumed by necessity of simultaneous respect for the sovereignty controlling such territory, to consent to submit to the exercise of the latter’s most characteristic function’.
103 Campione v Pet-Nitrogenmuver NV and Hungarian Republic, Italian Cour de Cassation, 14 November 1972; 65 ILR 287, 292.
104 The claims of Hungary and the Hungarian Institute were declared immune as regards consequences of nationalization and a dispute over access to a Hungarian cultural institute based in Rome but not to a claim for compensation for wrongful dismissal of the administrator of the institute. Hungarian People’s Republic v Onori, 24 May 1956; Paver v Hungarian People’s Republic, 17 October 1956; Hungarian People’s Republic v Hungarian Institute (Academy), 14 July 1960, all decisions of the Cour de Cassation, UN Legal Materials, 331–41.
105 Condor and Filvem v National Shipping Co of Nigeria, 2–15 July 1992, Italian Const Ct; 33 ILM 593; 101 ILR 394.
106 Presidenza Consiglo ministry e al. c. Federazione italiana lavoratori trasporti e al; Stati Uniti d’America c. fedrazione italiana lavoratori trasporti e. al., Italian Cour de Cassation, 3 August 2000, 530/2000 (Russel case).
107 SA des Chemins de Fer Liégeois-Luxembourgeois v l’Etat Néerlandais, Pasicrisie belge 1903, I 294, cited by Sinclair, R de C 167 (1980–II), 167, 113 at 133.
108 Socobel v Etat Héllenique (1951) 18 ILR 3 (Tribunal civil de Bruxelles).
109 Iraq v Vinci Construction, 4 October 2002, Brussels Ct of Appeal, Jo des Trib (2003), 318; 127 ILR 101. See Ch 16.
110 Lutchmaya v ACP, JTDE (2003) 684. See Ch 19 ‘International Organisations and Special Regimes’.
111 Hoyle, ‘The Mixed Courts of Egypt: An Anniversary Assessment’ (1985) 1 Arab Law Q 60.
112 Mixed Court of Appeal, 27 December 1894. Hoyle, ‘The Mixed Courts of Egypt 1886–1895’ (1986) 1 Arab Law Q 562, 569–70. The codes establishing the Mixed Courts were silent as to the concept of the private and public acts of the government.
113 Hoyle, ‘The Mixed Courts of Egypt 1896–1905’ (1987) 2 Arab Law Q 57, 61.
114 MCA, 2 December 1896. Cf MCA, 11 March 1896 where the Mixed Court upheld immunity regarding the cession of Madian to Turkey, which was clearly a sovereign act. Hoyle, ‘The Mixed Courts of Egypt 1896–1905’, 63.
115 Borg v Caisse Nationale d’Epargne, AD, 1925-26, Case No 122.
116 Capt Hall (Ministry of Shipping v Capt Bengoa and Admin Des Ports et Phares, SS Sumatra v SS Mercedes), MCA, 24 November 1920 (British vessel on commercial voyage and commanded by a civilian); Commandant P Saglietto v Mohamed Tawill Effendi, Mansourah District Court, 15 January 1929 (ship owned by Hejaz Government transporting pilgrims). Hoyle, ‘The Mixed Courts of Egypt 1916–1925’ (1987) 2 Arab Law Q 292, 301.
117 Gouvernement Espagnol v Casaux (1849) D 1849 1, 9; S (1849) 1, 93. See generally 580–96.
118 Union des Républiques Socialistes Soviétiques v Association France Export, Cass Req, 19 February 1928, D 1929, I, 73, note Savatier, S 1930–31, 49–51, note Niboyet.
119 Administration des Chemins de Fer du Gouvernement Iranien v Société Levant Express Transport Cass, 1e Civ, 25 February 1969, RGDIP (1970) 98–114, note Pierre Bourel, UN Legal Materials, 264; 52 ILR 315.
120 Two decisions in the last decade seeking to implicate government agencies of foreign States in criminal responsibility for negligent certification of seagoing safety of ships have confirmed their immunity from criminal jurisdiction, the Erika case: Judicial agent of Treasury v Malta Maritime Authority GP (2005), 1160 note by Chanel; Association federation nationale des victimes d’accidents collectifs; The Joola case: 19 January 2010 FrCass crim RGDIP 115 (2011) 593 note by Cosnard. For French practice regarding the application of the restrictive doctrine to private law and commercial acts, see Ch 16 under an act which a private person may perform.
121 Tribunal de Grande Instance, Paris, 15 January 1969, Hafner F/4.
122 Rapport No 73 (2010–11) de M Robert del PICCHIA, fait au nom de la commission des affaires étrangères, de la défense et des forces armées, déposé le 27 octobre 2010; Rapport No 3387 de Mme Élisabeth GUIGOU, fait au nom de la commission des affaires étrangères, déposé le 4 mai 2011.
123 NOGA v State of Russia, 10 August 2000, Ct f Appeal, Paris, 127 ILR 156, see Chapter 17 ‘State Immunity from Enforcement’.
124 Banque Africaine de Développement v Degboe, Paris Ct of Appeal, 7 October 2003, Rev Crit DIP (2004) 409, note Audit.
125 Spain: Emilio MB v Embassy of Guinea Equatorial, Spanish Supreme Ct, 10 February 1986, Hafner E/3, 536; Portugal: Brazilian Embassy Case (Case No 706), Portugal Supreme Ct, 11 May 1984; 116 ILR 625;
126 Spain: Rigopoulos v Spain, Const Ct, 10 February 1997, Hafner E/7, 539; Arroja v Bolivia, Portuguese Supreme Ct, Boletin do Ministerio da Justica 1997 No 464; Hafner P/10, 512, immunity of an honorary consul for acts in the exercise of the consular function—‘a public administrative function’—were held immune.
127 Abbott v Republic of South Africa, Spain Supreme Ct, 1 December 1986, Hafner E/4, 536; Const Ct (2nd chamber) 1 July 1992; 113 ILR 412; Maite GZ v Consulado General de Francia, Spain, Const Ct, 17 September 2001; Hafner E/8, 540.
128 Sinclair, ‘Law of Sovereign Immunity: Recent Developments’, R de C 167 (1980–II), 130 ff
129 Dralle v Republic of Czechoslovakia, Austrian Supreme Court, 10 May 1950; UN Legal Materials, 183; 17 ILR 155, Case No 41. The German branch in Czechoslovakia was the registered owner, by consent of the parent firm in Hamburg, of the trademarks registered by the latter in the Austrian Register.
130 Holubek v The Government of the United States, Austrian Supreme Ct, 10 February 1961, UN Legal Materials, 203; 40 ILR 73. Fox, ‘State Responsibility and Tort Proceedings against a Foreign State in Municipal Courts’ (1989) 20 NYIL 3.
131 Cf Jurisdictional Immunities case, ICJ Reports, para 64 citing Holubek and noting it ‘was treated as confined to acta jura gestionis’. See Austrian Rev.IL for further reports of decisions by Austrian courts.
132 The Ice King, Reichsgericht, 11 December 1921, 1 ILR 151–2, Case No 102, 151–2.
133 German Federal Const Ct, 30 April 1963, BvG, Vol 16, 27; UN Legal Materials, 282; 45 ILR 57.
134 German Federal Const Ct, 13 December 1977, 46 BverfGE 342; 65 ILR 146; UN Legal Materials, 297; Re Prejudgment Garnishment against National Iranian Oil Co, German Federal Const Ct, 12 April 1983; ILM 22 (1984) 1279, see Ch 16.
135 Sedelmayer v Russian Federation, German Federal Supreme Court, Order VII ZB 9/05, 4 October 2005, NJW-RR 2006, 198,
136 Royaume de Grece v Banque Julius Bär & Cie 6 June 1956, Swiss Federal Tribunal ATF 82 I 75; 18 ILR 195.
137 Republique Arabe Unies c Dame X 1960 Swiss Federal Tribunal, ATF 86 I, 23; 65 ILR 385. Bank account of diplomatic mission held immune from seizure in respect of non payment of rent of villa.
138 Republique Arabe d’Egypte v Cinetel ASDI 1981, 206; 65 ILR 425.
139 Republique X v Office federal de la justice 25 June 2001, not published, extracted in Switzerland’s contribution to the COE Project mentioned above; Hafner, 661.
140 Bucher, Droit international privé Suisse (1998) Nos 875 and 878, pp 263ff. See also Republique Arabe d’Egypte v Cinetel ASDI 1981, 206; 65 ILR 425.
141 A v B, Final appeal judgment, Case No 4C 187/2003, BGE 130 III 136, 21 November 2003, ILDC 342 (CH 2003).
142 Russian practice has always favoured effecting any modification of the rule by treaty rather than legislation or court decision, Butler, ‘Treaty Capacity and the Russian State Corporation’ (2008) 102 AJIL 310–15. For an account of Soviet doctrine supporting the absolute rule, see Byhovskaya State Immunity in Russian Perspective (2008), Ch 3, 99.
143 ‘The peculiarities of the responsibility of the Russian Federation and subjects of the Russian Federation in relations regulated by civil legislation with the participation of foreign judicial persons, citizens and States shall be determined by a law on the immunity of the State and its ownership’, CAHDI 2005 international/immunities. Michalchuk, ‘Filling a Legal Vacuum: The Form and Content of Russian Future State Immunity Law; Suggestions for Legal Reform’ (2001) 32 Law and Policy in Int Business 481 at 497. In 2001 the Russian High Arbitration Court rejected a claim relating to a construction contract brought against a foreign Embassy; Hafner RUS/5, 526. But in Kalashnikova v United States the Constitutional Court of the Russian Federation stated that Art 435 of the Civil Procedural Code providing for the immunity of an Embassy of a foreign State was subsidiary to provisions of the Labour Code in disputes arising from employment contracts and returned the case for reconsideration to the High Arbitration Court. Kalashnikova v United States Constitutional Court of the Russian Federation, 2 November 2000; Hafner RUS/7, 528.
144 Hafner RUS/5, 526.
145 Hafner RUS/7, 528.
146 The ‘determination of a right defendant to be summoned among intricate system of Russian government is not a trivial task even in domestic proceedings. Supreme Arbitrazh Court has even advised judges to take initiative in helping the claimants in finding the right respondent. (8) To be on the safe side, counsel to private parties in domestic proceedings often summon every possible government agency, so that a proper respondent (as may be determined in the course of litigation) would certainly be involved’ (Ilya Nikifotov of the St Petersburg office of the law firm EP & E).
147 Oleynikov v Russia ECtHR App No 36703/04, 1st Section, 14 March 2013, para 67. See also Sedelmayer v Russian Federation Supreme Ct Sweden, 1 July 2011, Pal Wrange (2012) 106 AJIL 347.
148 Law Decree No 13 of 1979 on Private International Law amended by Law No CX of 2000 amending certain legislative acts concerning jurisdiction and enforcement of judgments; Hafner, 397.
149 Petr Roith v Embassy of the Republic of South Africa Czech Republic, Superior Ct in Prague, decision of 31 August 1995, No 10 Cmo 418/95-16; Hafner, 27 fn 10; Polish Citizens v Embassy of Foreign State, Poland Supreme Ct, 26 September 1990; Hafner PL/1, 499; Bragadireanu v Romania, Romania, Ct of Appeal, Bucharest, 29 May 2003; Hafner RO/1, 519.
150 Czech Act No 97/1963 as amended 158/1969, 234/ and 264/1992, 125/2002 concerning private international law; see also Slovakia Act 97/1963 as amended to same effect; Hafner SK/1, 529; GM and TI v The Embassy of Bucharest, Romania, Bucharest Tribunal, Vth Civil and Administrative Division, 9 March 2001; Hafner RO/3, 521.
151 Marciej K v Embassy of a Foreign State, Poland, Supreme Ct, 11 January 2000; Hafner PL/2, 503.
152 Cudak v Lithuania App No 15869/0 ECtHR, 23 March 2010.
153 Natoniewski v Federal Republic of Germany Poland Supreme Ct (Civil Chamber) 29 October 2010. See Kaldunski ‘State Immunity and War Crimes: The Polish Supreme Court on the Natoniewski Case’ (2010) 30 Polish YBIL 236.
154 AALCO, Third General Meeting held on 21 June 2001.
155 Singapore, Philippines v Maler Foundation and Ors, ILDC 966 (SG 2008), No 29 in Immunities list. The status of Taiwan has raised problems in national courts owing to its lack of recognition as a State. Singapore ILDC 86 (SG 2004) Case No 106; Canada, Parent et al v Singapore Airlines Ltd and Civil Aeronautics Administration, Superior Ct of Quebec, Decision of 22 October 2003 (2008); 133 ILR 264–82; ILDC 181 (CA, 2003), Case 110.
156 Scott v People’s Republic of China, No CA3–79-0836-D (ND Tex, filed 29 June 1979) Memorandum in support of dismissal of the Action based upon the Sovereign Immunity of the Defendant, cited in Huang Jin and Ma Jingsheng, ‘The Immunities of States and their Property: The Practice of the People’s Republic of China’ (1988) 1 Hague YBIL 163 at 172.
157 USSR and PRC Treaty of Trade and Navigation, 23 April 1958, UN legislative Series: Materials on jurisdictional immunities of states and their property, ST/Leg/ser B/20, 134–5, Art 4 of the Annex that the trade delegation of each country should enjoy ‘all the immunities to which a sovereign State is entitled and which also relate to foreign trade, with the following exceptions … (a) disputes regarding foreign commercial contracts concluded or guaranteed under article 3 by the trade delegation in the territory of the receiving State shall, in the absence of a reservation regarding arbitration or any other jurisdiction, be subject to the competence of the said State … (b) Final judicial decisions against the trade delegation in the aforesaid mentioned disputes which have become legally valid may be enforced by execution, such execution may be levied only on the goods and claims outstanding to the credit of the trade delegation’.
158 Jin and Jingsheng, ‘The Immunities of States and their Property’, 179. For an early case granting immunity to the State agency owned and operated by the USSR for a claim for loss of a cargo of tea, see Rizaeff Frères v The Soviet Mercantile Fleet, Provisional Ct of Shanghai, 30 September 1927, UN Legal Materials, 251.
159 As a party to the 1969 Vienna Convention on Treaties in 1999 China, by Art 18, is obliged to refrain from acts which would defeat the object and purpose of a treaty which she has signed; Lijiang Zhu, ‘State Immunity from Measures of Constraint for the Property of Foreign Central Banks: The Chinese Perspective’ (2007) 4 Chinese J Int Law 67 at 76.
160 Democratic Republic of Congo and Ors v FG Hemisphere Associates LLC, Hong Kong Ct of Final Appeal, 8 June 2011 [2011] (FACV 5-7/2010) HKCFA 42.
161 Mr Justice Chan PJ, Mr Justice Ribeiro PJ, and Sir Anthony Mason NPJ, with Bokhary PJ and Mortimer NPJ dissenting.
162 Matsuyama and Sano v The Republic of China, Japan, Great Ct of Judicature, 28 December 1928, summarized in 4 ILR 168, Case 107. Hirobe, ‘Immunity of State Property: Japanese Practice’ (1979) 10 Netherlands YBIL 233.
163 The Yokata Base case, Japanese Supreme Ct, 2nd chamber, 12 April 2000; the court stated ‘the so-called absolute immunity principle was a traditional rule of international law’ and commented that ‘the view has gained ground … that it is not appropriate to grant immunity from civil suit even for acts jure gestionis, and the practice of foreign States to restrict the scope of immunity has been accumulating’ (English translation by Mizushima Tomonori, to whom I am indebted for this reference). On 30 November 2000 the Tokyo District Court denied immunity in a suit relating to bonds issued by a Nauru entity with a guarantee by the Republic of Nauru on two grounds: the commercial nature of the activity and waiver of immunity in the agreement: Japanese Annual of IL 42 (1999) 138; see Mizushima, Case Note (2003) 97 AJIL 406.
164 Case No 1231 [2003]. 1416 Saibansho Jiho 6, Japanese Supreme Ct, 21 July 2006, see Jones, Case Note (2006) 100 AJIL 908 at 909.
165 LCMJ-SICL Minutes 6th Meeting 19 January 2009, as referred to in Kimio Yakushiji, ‘Legislation of the Japanese Act on Civil Jurisdiction over Foreign States and Possible Effects on Jurisprudence of Japanese Domestic Courts’ (2010) 53 Japan YBIL 202 at 227 fn 96.
166 Second report quoting Sinclair, ‘Law of Sovereign Immunity: Recent Developments’ R de C 167 (1980), 113 at 196; see also Brownlie, Principles of Public International Law (6th edn, 2003), 332–3.
167 UN Documents: 59th GA session: Summary of Work of the Sixth (Legal) Committee, Item 142, Convention on Jurisdictional Immunities of States and their Property, 4 March 2005, 6–8.