¹ HL, Hansard, vol 388, col 59, Elwyn Jones LC.

² The Preamble to the 1978 Act reads: ‘An Act to make new provision with respect to proceedings in the United Kingdom by or against other States; to provide for the effect of judgments given against the United Kingdom in the courts of States parties to the European Convention in State Immunity; to make new provision with respect to the immunities and privileges of Heads of State; and for connected purposes’.

³ Reply of Legal Adviser, FCO, Sir Ian Sinclair to Legal Counsel to UN, Mr Eric Suy, 18 January 1979, reprinted in (1980) 51 BYIL 422 at 424. Protests were received as to the amended execution ‘provisions’.

⁴ [1993] AC 593; [1993] 1 All ER 442. Reference to ministerial statements as to the purpose of the legislation is not admissible. R v Secretary of State for the Environment, Transport, and the Regions, ex parte Spath Holme Ltd [2001] 1 All ER 195 (Lords Nicholls of Birkenhead and Cooke of Thorndon dissenting). In a majority decision the House of Lords held inadmissible, in construction of an ambiguous statutory expression, ministerial statements to Parliament as to matters of policy not reproduced in the statute (Lord Hope of Craighead at 227) or as to the scope of a statutory power, unless the ministerial statement in Parliament consisted of a categorical assurance by the minister to Parliament that the power would not be used in a given situation, such that Parliament could be taken to have legislated on that basis (Lord Bingham of Cornhill at 211–12).

⁵ Reference to ministerial statements to interpret the Act were made in Ex parte Pinochet R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (Amnesty International Intervening), (No 3) [2000] 1 AC 147; [1999] 2 All ER 97 at 113, 192; 119 ILR; Svenska Petroleum Exploration AB v Government of the Republic of Lithuania [2005] EWHC 9 (Comm); [2005] 1 All ER 515 at paras 70–1.

⁶ The Act deals primarily with relations between States, and accordingly its provisions fall to be construed against a background of public international law: Alcom Ltd v Republic of Colombia and Others [1984] AC 580; [1984] 2 All ER 6, HL at 8; 74 ILR 170. See the Supreme Court’s decision in Assange v Swedish Prosecution Authority [2012] 2 WLR 1275 as to a conflict between ministerial statements and the parliamentary history relating to the Extradition Act 2003, and the common law presumption that such a statute was intended to be read consistently with the UK’s treaty obligations under the Framework Decision 20002/584/JHA on the European arrest warrant and surrender procedures ministerial statements. The majority held (Lord Mance and Baroness Hale dissenting) that in determining whether the term ‘judicial authority’ in the statute included a public prosecutor, it was legitimate to take account of any subsequent State practice pursuant to the Vienna Convention on Treaties, Art 31.3(b), which established the parties’ agreement, though contradicted by the UK parliamentary history relating to the statute.

⁷ The UK’s power to conduct the international relations of its dependent territories as well as the Channel Islands and Isle of Man bring these constituent units within the definition of State in the UN Convention, Art 2.1(b)(ii). As regards the Isle of Man, see the agreement of 11 January 2006 between the Chief Minister of the Isle of Man and the UK Secretary of State for Constitutional Affairs stating that the Isle of Man has an international identity which is different from that of the UK and that the UK will not act internationally on behalf of the Isle of Man without prior consultation. Given the complexity and different constitutional arrangements between the UK government and its dependent territories, the UK may consider making an express declaration on ratification of the 2004 UN Convention of State Immunity as to its territorial application.

⁸ Section 16(1).

⁹ Section 16(2): see also Ch 18 below on visiting armed forces.

¹⁰ The SIA is not a codifying statute: Rules of Supreme Court Practice (9, II Pt 14 Miscellaneous Parties and Proceedings, para 4671).

¹¹ Planmount Ltd v Republic of Zaire [1981] 1 All ER 1110; 64 ILR 268; Sengupta v Republic of India [1983] ICR 221; 64 ILR 352; I Congreso del Partido [1983] 1 AC 244; [1981] 2 All ER 1062, HL; 64 ILR 307.

¹² Littrell v USA (No 2) [1994] 4 All ER 203; [1995] 1 WLR 82; 100 ILR 438.

¹³ Holland v Lampen-Wolfe [1998] 1 WLR 188, CA; [2000] 1 WLR 1573; [2000] 3 All ER 833; 119 ILR 36, HL per Lord Hope of Craighead at 835; see also Millett LJ at 844–5. See also Hicks v USA, Employment Appeal Tribunal, 28 July 1995; 120 ILR 606.

¹⁴ ‘Part I of the Act does not apply to proceedings relating to anything done or in relation to the armed forces of a State while present in the United Kingdom, and, in particular, has effect subject to the Visiting Forces Act 1952.’

¹⁵ ECSI, Art 15; SIA, s 1. See further Ch 19 under Armed Forces.

¹⁶ Shearson Lehman Bros Inc v Maclaine Watson & Co Ltd [1988] 1 WLR 16; [1988] 1 All ER 116, HL; Australia and New Zealand Banking Corpn v The Commonwealth of Australia, 21 February 1989, Evans J (transcript), 707.

¹⁷ R (on the application of Alamieyeseigha) v Crown Prosecution Service [2005] EWHC 2704 (Admin) per Silber J, para 9.

¹⁸ Pinochet (No 3) [2000] 1 AC 147; [1999] 2 All ER 97; 119 ILR 111. See further below, under Head of State.

¹⁹ Lechouritou v Dimosio, ECJ Case C-292/05; [2007] 2 All ER 57 at paras 37–9; Grovit v De Nederlandsche Bank NV [2005] EWHC 2994 (QB); [2006] 1 WLR 3323, paras 32–61, confirmed [2007] EWCA Civ 953. Regulation Rome II EC 864/2007 in force 11 January 2009 which now governs the conflict of laws relating to non-contractual obligations in civil and commercial matters expressly excludes the liability of the State for acts and omissions in the exercise of State authority. Recital 9 states: ‘Claims arising out of acta jure imperii should include claims against officials who act on behalf of the State and liability for acts of public authorities including liability of publicly appointed office-holders. Therefore these matters should be excluded from the scope of the Regulation.’

²⁰ Although the 2004 UN Convention contains no provision similar to ECSI 24(i), the declaration on ratification employed by the UK might be usefully adapted to enable UK ratification of the UN Convention whilst preserving aspects of its law which grant a wider jurisdiction over foreign States than the 2004 Convention.

²¹ The State Immunity (Merchant Shipping) (Revocation) Order 1999 (SI 1999/668) revoked earlier Orders made to give effect to special administrative arrangements restricting execution on State-owned ships pursuant to a protocol made under the 1968 Treaty between the USSR and the UK.

²² See Ch 10 under Constituent units and R (on the application of Alamieyeseigha) v Crown Prosecution Service [2005] EWHC 2704 (Admin). See also BCCI v Price Waterhouse [1997] 4 All ER 108.

²³ Fogarty v UK, ECHR App No 37112/97, Admissibility 1 March 2000; Judgment 21 November 2001; (2001) 34 EHRR 302; aff’d 123 ILR 53.

²⁴ Al Adsani v United Kingdom, ECHR App 35753/97; (2002) 34 EHRR 111; 123 ILR 23.

²⁵ Grovit v De Nederlandsche Bank NV [2005] EWHC 2994 (QB); [2006] 1 WLR 3323; [2007] EWCA Civ 953; AIG Capital Partners Inc and Another v Kazakhstan [2005] EWHC 2239 (Comm); [2006] 1 All ER (Comm) 1. Cf in respect of immunities of international organizations ENTICO v UNESCO and Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 531 (Comm), see Ch 3, under ECHR Art 6 (1) Access to court.

²⁶ Jones v Minister of Interior of Kingdom of Saudi Arabia [2006] UKHL 26; [2006] 2 WLR 70, para 8.

²⁷ In the notice the Foreign and Commonwealth Office stated that it was undertaking a detailed comparison of the provisions of the UN Convention with domestic law, particularly the SIA and the ECSI. It invited views stating: ‘While the precise language of the UN Convention may of course differ in some respects from that used in the 1978 Act, we will need to consider whether a compatible interpretation of the 1978 Act by our courts can realistically be expected. This process will assist a decision to be made as regards whether the UK should sign and ratify the UN Convention, and do so without primary legislation.’

²⁸ As to ‘commercial activity’ SIA, s 3(3)(c), the employment exception s 4 generally and with regard to s 16(1)(a) as regards members of diplomatic missions and consular posts; the jurisdictional requirement with the UK of the author of the act or omission in the tort exception s 5, the application to international organizations of s 7 ‘head of state in his public capacity’ s 14(1)(a), ‘separate entities’ s 14(1)(c) and 2 (a) and (b), central banks 14(4), and ‘constituent territories’ s 14(5); and Part III s 20 as regards the personal immunity of a Head of State and s 21(a) as regards the applicability of an FCO certificate to criminal proceedings.

²⁹ O’Keefe, ‘The United Nations Convention on Jurisdictional Immunities of States and Their Property and the UK’s Possible Ratification’, presentation at Current Issues in the Law of Immunities, UK Foreign & Commonwealth Office, London, 23 March 2012.

³⁰ (1989) 60 BYIL 632 A/C.6/44/SR.35, 19–20.

³¹ See further below, ‘Proof of the status of a foreign State or government’.

³² Mann, ‘The State Immunity Act 1978’ (1979) 50 BYIL 43.

³³ For the more nuanced position, see ECSI, Arts 15 and 24, discussed in Ch 5.

³⁴ 2nd Report of Mr Motoo Ogiso on Jurisdictional Immunities of States and their Property A/CN 4/422 ILC YB 1989 para 15.

³⁵ Discussed in Ch 11.

³⁶ But see Al-Adsani v Government of Kuwait, CA, 12 March 1996; 107 ILR 536 at 542, 549. For the need for an additional jurisdictional link to the English court in proceedings brought under the Act, see below on the exceptions to the Act.

³⁷ Alcom Ltd v Republic of Colombia and Others [1984] AC 580; [1984] 2 All ER 6, HL; 74 ILR 170. Section 14(4) of the Act makes special provision for execution against the property of central banks; see Ch 13.

³⁸ Exceptions to immunity from Admiralty suits is dealt with in s 10; immunity of a ship or cargo from arrest, detention, and sale, whether before or after judgment, in s 13(2)(b) and (4). Millett J did not consider the presentation and hearing of a winding-up petition, as distinct from proof of the debts in the winding-up of a company, as falling within the enforcement jurisdiction in Re International Tin Council [1987] 1 All ER 890, and the application of the liquidator for the directions of the court as to payments in Re Rafidain Bank [1992] BCLC 301; 101 ILR 332 also appears in some respects to be hybrid.

³⁹ The ICJ’s treatment of the Italian court’s decisions enforcing the judgment of the Greek court in respect of the German property, the Villa Vigoni, located in Italy in the Jurisdictional Immunities case illustrates the difference. At the first stage, the adjudication stage, the issue was ‘whether the Italian judgments declaring enforceable in Italy the pecuniary awards pronounced in Greece, did themselves—independently of any subsequent measure of enforcement—constitute a violation of the Applicant’s immunity from jurisdiction.’ At the second stage of enforcement the question was ‘to determine whether a measure of constraint—such as the legal charge on Villa Vigoni—violated Germany’s immunity from enforcement’ (para 124). Whilst the ICJ noted there to be a link between the two stages—since the measure of constraint against Villa Vigoni could only have been imposed on the basis of the judgment of the Florence Court of Appeal according exequatur in respect of the judgment of the Greek court in Livadia—it declared the two issues to remain distinct since they were governed by different sets of rules. See Chapters 16 and 17.

⁴⁰ NML Capital v Argentina [2011] UKSC 31; 3 WLR 273, confirming AIC Ltd v Nigeria [2003] EWHC 1357 (QB), paras 22–8; Svenska Petroleum Exploration AB v Lithuania and Another [2006] EWCA Civ 1529; [2007] 2 WLR 876, paras 135–7. See further below, under ‘immunity from execution’.

⁴¹ Arab Banking Corpn v The International Tin Council [1986] transcript 15 January 1986, Steyn J; Sabah v Pakistan [2002] EWCA Civ 1643; [2002] All ER (D) 201 (November) at para 23. Sed quaere whether an anti-suit injunction would be equally barred applying an arbitral procedural direction made in an arbitration to which the State was a party.

⁴² Mighell v Sultan of Johore [1894] 1 QB 149.

⁴³ Arab Republic of Egypt v Gamal Eldin and Another [1996] 2 All ER 237, Employment Appeals Tribunal.

⁴⁴ For examples of the court raising the issue of immunity, see Steyn J in GUR Corpn v Trust Bank of Africa Ltd [1987] QB 599; [1986] 3 All ER 449; and the CA in Fayed v Al-Tajir [1987] 3 WLR 102. Cf the US and French practice discussed in ‘The duty of the court to raise immunity’ below and in Ch 1.

⁴⁵ See further below under ‘Procedure, commencement of proceedings against a foreign State’.

⁴⁶ The sovereign or other head of State only enjoys State immunity when acting in exercise of the sovereign authority of the recognized State; the public capacity referred to in s 14(1)(a) must be a public capacity of the recognized State, not of a constituent territory: BCCI (Overseas) Ltd v Price Waterhouse (No 1) [1997] 4 All ER 108 at 114.

⁴⁷ Propend Finance Pty Ltd v Sing [1997] 111 ILR 611, CA, 2 May 1997.

⁴⁸ 45 ILR 57, German Federal Constitutional Court, 30 April 1963.

⁴⁹ See Dickinson, Lindsay, and Loonam, Selected Materials and Commentary (2004) (hereafter Dickinson, Selected Materials), 399–401 who argues that SIA, s 14(1)(b) should be given a more restrictive construction limited to central government as a collectivity and that individual government officials, such as the British Military commandant in Trawnik and the officer of the Australian Federal police in Propend, provided that the proceedings relate to acts in exercise of sovereign authority, would solely be protected by immunity ratione materiae.

⁵⁰ Jones v Saudi Arabia [2006] UKHL 26; [2007] AC 270; 129 ILR 713; [2006] 2 WLR 70, para 69 per Lord Hoffmann. As to the principles to be applied to determine whether an entity is a government department, see Dickinson, Selected Materials, 403, para 4.101.

⁵¹ The Act follows the majority ruling in Baccus SRL v Servicio Nacional del Trigo [1957] 1 QB 438.

⁵² The Altair [2008] 2 Lloyd’s Rep 90 citing Dickinson, Selected Materials, 403, para 4.101.

⁵³ President Mugabe as serving head of State of Zimbabwe was accorded immunity while on a visit to England and a warrant for his arrest on a charge of torture was refused, Bow Street magistrate, 14 January 2004 reported in (2004) 53 ICLQ 770.

⁵⁴ HL, Hansard vol 388, col 58, 17 January 1978.

⁵⁵ HL, Hansard vol 389, col 1537, 16 March 1978; Denza (1994) 48 ICLQ 850.

⁵⁶ Pinochet (No 3) [2000] AC 151; Fox, ‘The Pinochet Case No.3’ (1999) 48 ICLQ 687.

⁵⁷ The case is further discussed in Ch 18 under ‘The head of State’.

⁵⁸ The exclusion of the majority of the charges contained in the extradition request by the Lords in their decision in Pinochet (No 3) led them to recommend that the Home Secretary should reconsider his decision to extradite. He did so, and renewed his authority to proceed but in March 2000 on medical advice he allowed Pinochet to return to Chile on the ground that ill health made him unfit to plead. In August 2000 the Chilean Supreme Court decided that immunity as a former head of State was no bar to the institution of proceedings in the Chilean courts against Pinochet for offences relating to causing death, injury, and torture to persons in violation of fundamental human rights, but the former head of State died before the proceedings on the substantive issues. Proceedings against the family of Pinochet continue in the Chilean courts. Gattini, ‘The Pinochet Cases’ (2012) MPEPIL.

⁵⁹ An earlier Judicial Committee of the House of Lords had reached the same conclusion, rejecting immunity for the international crimes of State torture and taking hostages by a majority three to two, R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (Amnesty International Intervening) (No 1) [1998] 3 WLR 1456; [2000] AC 61; [1998] 4 All ER 897 but this first judgment was set aside by yet another Judicial Committee for apparent lack of impartiality, as one of the Law Lords, Lord Hoffman, had failed to disclose his links with Amnesty International, an intervenor in the first proceedings, R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (Amnesty International Intervening) (No 2) [2000] AC 119; [1999] 2 WLR 272; [1999] 1 All ER 577. Interestingly, in Jones v Saudi Arabia [2007] 1 AC 270; [2006] 2 WLR 1424, HL(E), para 19, Lord Bingham expressed ‘some doubt about the value of the judgments in Pinochet (no.1) as precedent, save to the extent that they were adopted in Pinochet (no.3)’.

⁶⁰ Denza, ‘Ex parte Pinochet: Lacuna or Leap’ (1999) 48 ICLQ 949; McLachlan, ‘Pinochet Revisited’ (2002) 51 ICLQ 959.

⁶¹ See Arrest Warrant, para 61. See further, Ch 17.

⁶² HL, Hansard, vol 389, col 1530, 16 March 1978.

⁶³ Trendtex Trading Corpn v Central Bank of Nigeria [1977] 1 All ER 881; 64 ILR 111; [1977] QB 529 at 559–60.

⁶⁴ [1995] 3 All ER 694, at 706; 103 ILR 340 at 355; ECSI, Art 27 distinguishes a legal entity ‘entrusted with public functions’ from other legal entities even though, like them, it is distinct from the State and capable of suing and being sued. A construction which Lord Goff said was ‘reinforced’ by the description in s 14(1) of such an ‘entity as being distinct from the executive organs of the government of the State’ and by the fact that s 14(1) finds it necessary to provide expressly that reference to a State does not include references to such an entity: KAC v IAC (No 2) 706.

⁶⁵ A State enterprise performing no governmental functions, which had been privatized into a joint stock company with private stockholders owning the majority of the stock, and with its own legal personality, distinct from any State organization, is not a separate entity within the 1978 Act. Coreck v Maritime GmbH v Sevrybokholodflot 1994 SLT 893; 107 ILR 659, Scotland, Ct of Session, Outer House, Lord Cameron of Lochbroom.

⁶⁶ Kuwait Airways Corpn v Iraq Airways Co (No 2) [1995] 3 All E R 694; 103 ILR 340. In Central Bank of Yemen v Cardinal Financial Investment Corpn [2001] Lloyd’s Rep Bank 1, CA, the bank was a separate entity but enjoyed no immunity in respect of a claim relating to its default on a promissory note. A further consequence of the status of separate entity was provided in s 14(4); if a separate entity not being a central bank or other monetary authority submits to the jurisdiction in a case where it is entitled to immunity the provisions in s 13(1)–(4) restricting execution against a State are to apply to that entity.

⁶⁷ 103 ILR 340 at 405–6.

⁶⁸ 103 ILR 340 at 415, 418–19. In Kuwait Airways (Nos 4 and 5) two Law Lords appeared to agree with this minority view, that the Iraqi airline being under the control of a dictatorial regime and having no power to act contrary to the Iraq government orders, should also have been granted immunity: [2002] 2 AC 883, 16 May 2002, per Lord Hope at para 133, Lord Scott at para 201.

⁶⁹ Kensington International Ltd v Republic of the Congo [2005] EWHC 2684 (Comm), paras 53–5. The case was concerned with liability and commercial fraud not immunity. The Court of Appeal of Paris has twice reached the view that SNPC is an alter ego of the Congo, on 23 January 2003 and 3 July 2003, in the context of enforcing judgments given against the Congo, against assets belonging to SNPC. Cf Walker International Holdings Ltd v Republique Populaire Du Congo and Others [2005] EWHC 2813 (Comm); cf Ministry of Trade of Republic of Iran v Tsavliris Salvage (International) Ltd (The ‘ALTAIR’) [2008] EWHC 612 Comm [2008]2 Lloyd’s Rep 90 where the shipping of wheat to feed the Iranian people pursuant to a contract which included a salvage agreement with disputes subject to arbitration was held to be a commercial non-immune act.

⁷⁰ Continental Transfert Technique Ltd v Government of Nigeria & Ors [2009] EWHC 2898 (Comm) per Jonathan Hirst QC sitting as a deputy High Court Judge, para 42: ‘English rules on conflict of laws recognise the existence of foreign corporations duly created under the law of a foreign country’: see Dicey, Morris, and Collins, The Conflict of Laws (14th edn), Rule 161, at 1339 et seq.

⁷¹ I Congreso del Partido [1983]1 AC 244 at 258F–G; Lord Wilberforce cited Czarnikow Ltd v Rolimpex [1979] AC 351 and added, ‘Quite different considerations apply to a state-controlled enterprise acting on government directions on the one hand, and a state, exercising sovereign functions, on the other’.

⁷² La Générale des Carrières et des Mines (‘Gécamines’) v FG Hemisphere Associates LLC [2012] UKPC 27.

⁷³ The ruling in Pocket Kings in respect of a claim for confiscation by Kentucky Commonwealth of a domain name in breach of gambling laws would seem wrongly decided in so far as it treated Kentucky as entitled constitutionally to exercise foreign relations independent of the Federal US government since the Federal Government alone exercises the foreign relations power, Pocket Kings Ltd v Safenames Ltd & Anor [2009] EWHC 2529 (Ch); [2010] 2 WLR 1110. See further, Ch 10, under ‘political divisions’.

⁷⁴ R (on the application of HRH Sultan of Pahang) v Secretary of State for the Home Department [2011] EWCA Civ 616 per Maurice Kay LJ at para 10 citing Pocket Kings, above.

⁷⁵ [1971] 1 WLR 604. In that case the Court of Appeal held, that under the federal constitution of Canada the powers of government were divided between the dominion government and the provincial governments with each provincial government, within its own sphere, retaining its independence and autonomy directly under the Crown and in consequence entitled to claim sovereign immunity. Mellenger continues to be followed within Canada with respect to both inter-provincial Crown immunity and the sovereign immunity of provinces in foreign States: R v Medvid 2010 SCQB 22, para 27.

⁷⁶ R (on the application of Alamieyeseigha) v Crown Prosecution Service [2005] EWHC 2704 (Admin); R (on the application of HRH Sultan of Pahang) v Secretary of State for the Home Department [2011] EWCA Civ 616 where in both cases executive certificates as to their status had been obtained. See also Moor-Bick LJ at para 36 in Sultan of Pahang ‘…a certificate of the Secretary of State is conclusive evidence of the status of a territory for the purposes of Part I of the Act and is the only proper means by which the court can inform itself of a territory’s status and of the identity of the head of state for the purposes of the common law, where that continues to apply’.

⁷⁷ This provision gives effect to the optional arrangement under ECSI, Art 28(2) whereby a State by notification may declare that its constituent territories may claim State immunity which in the event of UK ratification of UNCSI would as proposed in CAHDI be denounced.

⁷⁸ BCCI v Price Waterhouse [1997] 4 All ER 108.

⁷⁹ Calman Commission on Devolution, Serving Scotland Better: Scotland and the United Kingdom in the 21st Century, 15 June 2009; Scottish Parliament’s draft bill for proposals for Referendum on Scotland’s constitutional future, 2010.

⁸⁰ Cf Axa General Insurance Ltd v Lord Advocate [2011] UKSC 46; [2011] 3 WLR 871 where, for the purposes of judicial review at common law, the Scottish Parliament is not treated as a subordinate legislature; Gavin Anderson et al, ‘The Independence Referendum, Legality and the Contested Constitution: Widening the Debate’ Constitutional Law Group, 31 January 2012.

⁸¹ The argument that, as a constitutional measure, the Scotland Act ought to be given a ‘generous and purposive interpretation’ was rejected in Imperial Tobacco v The Lord Advocate [2012] CSIH 9; it being insisted by the Inner House that, although of constitutional significance, the Scotland Act was not a constitution, but rather an Act of Parliament, and should therefore be interpreted in the same way as other statutes. A challenge to the competence of the promised independence referendum is possible, unless agreement is reached on an Order under s 30 of the Scotland Act to confer express power on the Scottish Parliament to legislate on this matter. The independence referendum issue is, of course, also significant as the first instance of an open dispute between the Scottish and UK governments about the vires of proposed legislation. Given the complexity of the reserved/devolved boundary, the reach and intricacy of potential EU constraints, and the open-textured nature of Convention rights, it would seem, on the face of it, that there must remain substantial scope for individual challenges. See Aileen McHarg, ‘The Dog that Finally Barked: Constitutional Review under the Scotland Act’, Constitutional Law Group, 26 June 2012.

⁸² Northern Ireland has a three-tier scheme by which the Assembly is given legislative powers except within specified areas, with the possibility of certain areas being devolved at a later date.

⁸³ House of Commons Library Research Paper 99/84 (19 October 1999) ‘Devolution and Concordats’.

⁸⁴ The International Criminal Court (Scotland) Act 2001 ASP 13 is an example of such dual legal competence. This Act, in tandem with the International Criminal Court Act 2001 (the UK Act), enabled the UK to ratify the Statute of the ICJ, which was adopted on 17 July 1998 at Rome.

⁸⁵ These relationships between the administrations in Edinburgh and Belfast and the government in London are regulated by ‘Concordats’, non-legally binding understandings which, inter alia, cover international relations, including the making and implementation of treaties.

⁸⁶ Berman, ‘Treaty Implementation in Great Britain after “Devolution”’ in Franck (ed), Delegating State Powers: The Effect of Treaty Regimes on Democracy and Sovereignty (2000), 255; Warbrick, ‘Treaties’ (2000) 40 ICLQ 944 at 953.

⁸⁷ Trendtex Trading Corpn v Central Bank of Nigeria [1977] QB 529; Hispano Americana Mercantil SA v Central Bank of Nigeria [1979] 2 Lloyd’s Rep 277.

⁸⁸ Cardinal Financial Investment Corpn v Central Bank of Yemen, 12 April 2000, Longmore J; 1999 folio no 1195 QBD (Comm Ct); Central Bank of Yemen v Cardinal Financial Investment Corpn (No 1) [2001] Lloyd’s Rep Bank 1, CA.

⁸⁹ Banca Carige SpA Cassa di Risparmio di Genova e Imperio v Banco Nacional de Cuba [2001] 3 All ER 923. Banco Nacional de Cuba v Cosmos Trading Corpn [1999] 9 November 1999, CA.

⁹⁰ Camdex International Ltd v Bank of Zambia (No 2) [1997] 1 All ER 728.

⁹¹ Crescent Oil & Shipping Services Ltd v Banco Nacional de Angola, 28 May 1999, Cresswell J, unreported. Cresswell J relied on Sanchez v Banco Central de Nicaragua 770 F.2d 1385 (5th Cir 1985), which has been overruled in Weltover.

⁹² As to the making of a winding-up order in respect of a State entity, see Dickinson, Selected Materials, 410, para 4.107.

⁹³ AIG Capital Partners Inc and Another v Kazakhstan [2005] EWHC 2239 (Comm); [2006] 1 All ER (Comm) 1. Cf UNCSI, 19(c) where the assets of a central bank sued as a separate entity would seem attachable; and Japanese Act on Civil Jurisdiction over Foreign States, s 19 ‘A Central Bank or other equivalent monetary authority of states other than Japan (referred to as “Foreign Central Bank” in the following paragraph) shall be deemed to be a foreign State with regard to proceedings on provisional measures and enforcement of judgments against its property, even if it does not fall within Art 2, items (i) to (iii) and the provisions of Article 4 and Article 17, paras 1 and 2 shall apply’ (ACJFS) 2010, English translation at (2010) 53 Jap YBIL 830.

⁹⁴ (1877) 5 ChD 605.

⁹⁵ An expression of this rule is to be found in the Crown Proceedings Act 1947, s 21(2), which provides that a litigant should not bring proceedings against an individual officer of the Crown in order to obtain a remedy which he was unable to obtain by direct proceedings against the Crown itself. The section reads: ‘The court shall not in any civil proceedings grant any injunction or make any order against an officer of the Crown if the effect of granting the injunction or making the order would be to give any relief against the Crown which could not have been obtained in any proceedings against the Crown.’

⁹⁶ 17 April 1997, CA, 111 ILR 611 at 669.

⁹⁷ [2005] EWHC 2944 (QB); [2006] 1 WLR 3323; [2007] EWCA Civ 953.

⁹⁸ Jones v Minister of Interior of Kingdom of Saudi Arabia [2004] EWCA Civ 1394; [2007] 1 AC 270; [2005] 2 WLR 808; 129 ILR 629 at 713. O’Keefe, (2006) 77 BYIL 500. Cf Orakhelashvili, ‘State Immunity and Public Order Revisited’ (2006) 49 Germ YB IL 327, a critique of the Lords’ judgment, but it overlooks the Arrest Warrant case.

⁹⁹ Jones v Minister of Interior of Kingdom of Saudi Arabia [2006] UKHL 26; [2006] 2 WLR 70, followed in Fang and Others v Jiang and Others, New Zealand HC, 21 December 2006, HC AK CIV 2004-404-5843.

¹⁰⁰ [1958] AC 379.

¹⁰¹ Schmidt v Home Secretary of Government of UK, Commissioner of Metropolitan Police, and Jones [1995] 1 ILRM 3301; 103 ILR 322.

¹⁰² ‘It is said that, if he was an “organ” of the State, the transfer to him was equivalent to a transfer to the State of Pakistan itself and that automatically entitles it to a stay; whereas, if he was only an agent, it must produce evidence to satisfy the rule about “property”. I agree with the Court of Appeal that Rahimtoola cannot be regarded as an “organ or alter ego”, but I find it difficult to reconcile this with the decision in Baccus SRL v Servicio Nacional del Trigo, as to which I would only say that I should have thought that a separate legal entity which carried on commercial transactions for a State was an agent, and not an organ, of the Government, and that it was only if it was an “organ or alter ego” that it could not be impleaded’: [1958] AC 379 at 417, per Lord Denning.

¹⁰³ Cohn, Waiver of Immunity (1958) 34 BYIL 260.

¹⁰⁴ NML Capital v Argentina [2011] UKSC 31; 3 WLR 273 per Lord Collins at paras 120–6.

¹⁰⁵ However, in jurisdictions where the common law still applies unamended, as in Hong Kong following the decision of the Final Court of Appeal in Democratic Republic of Congo and others v FG Hemisphere Associates LLC Hong Kong Court of Final Appeal (CFA) 8 June 2011, 147 ILR 376, the current common rule relating to submission with regard to State immunity continues to have relevance. See Ch 11 ‘Time at which Consent to be given: English law’.

¹⁰⁶ A rule clearly stated in respect of diplomatic immunity in Re Suarez [1917] Ch 131; Dicey and Morris on the Conflict of Laws (13th edn, 2000), Ch 10 and of international organizations: Arab Banking Corpn v The International Tin Council [1986] transcript 15 January 1986, Steyn J.

¹⁰⁷ Kuwait Airways Corpn v Iraqi Airways Co [1995] 1 Lloyd’s Rep 25, CA at 31, 37.

¹⁰⁸ Aziz v Republic of Yemen [2005] All ER (D) 188, para 54.

¹⁰⁹ Aziz v Republic of Yemen [2005] All ER (D) 188, para 58, citing Dickinson, Selected Materials, para 4.024.

¹¹⁰ Saudi Arabia v Ahmed [1996] ICR 25; [1996] 2 All ER 248, CA; 104 ILR 629.

¹¹¹ Arab Republic of Egypt v Gamal Eldin and Another [1996] 2 All ER 237, Employment Appeals Tribunal.

¹¹² See Baccus SRL v Servicio Nacional del Trigo [1957] 1 QB 438. See Ch 10 at ‘State agencies’.

¹¹³ Mann, ‘The State Immunity Act 1978’ (1979) 52 BYIL 43 at 51.

¹¹⁴ SIA, s 9 widens the concept of waiver by construing a State’s consent to arbitration as including consent to any proceedings brought in UK courts in relation to such an arbitration. A challenge to the validity of the contract in which the consent to submit is given may not necessarily invalidate that submission; Dickinson, Selected Materials, 350, para 4.019.

¹¹⁵ In Committee, the provision relating to prior written agreement provoked considerable debate. Lords Wilberforce and Denning sought an amendment treating consent as waiver of immunity rather than retaining the common law requirement of a consensual submission. They proposed any expression of consent by the State to the court’s jurisdiction, whether oral or written, express or implied (including a choice of law clause), should be sufficient and, as in the US Act, no withdrawal of such waiver should be allowed save in accordance with any provision made at the time it was given. But the government insisted on retaining a degree of formality, stressing that, as a result of the exceptions to immunity introduced by the Act, immunity would remain only in respect of acts of a sovereign nature and in those circumstances ‘it was not unreasonable to expect a plaintiff who wishes to have his proceedings entertained to be able to produce the State’s written agreement’: HL, Hansard, vol 389, col 1492, 16 March 1978, Elwyn-Jones LC.

¹¹⁶ To allow such an inference would constitute an exorbitant exercise of jurisdiction over a State, HL, Hansard, vol 389, cols 1493–4, 16 March 1978. The requirement that such agreement should be between the parties was dropped in its course through Parliament: HL, Hansard, vol 389, col 1491, 16 March 1978 and by s 17(2) reference to an agreement includes a treaty, convention, or international agreement (to which an international organization as well as a State might be party).

¹¹⁷ A Company v Republic of X [1990] 2 Lloyd’s Rep 520, Saville J. The contract in this case contained a clause 6: ‘Sovereign immunity. The Ministry of Finance hereby waives whatever defence it may have of sovereign immunity for itself or its property (present or subsequently acquired)’ and clause 7: ‘… A Co and the Ministry of Finance hereby submit to the jurisdiction of the English courts’. Saville J construed clause 6 as a general submission to both adjudication and enforcement.

¹¹⁸ [2002] EWCA Civ 1643.

¹¹⁹ Section 9 similarly blurs the distinction by removing immunity to both the adjudicative and enforcement stages of an arbitration. A clause excluding a provision for enforcement of an arbitral award was deleted during the passage of the Bill through Parliament: HL, Hansard, vol 389, cols 1516–17, 16 March 1978.

¹²⁰ Svenska Petroleum Exploration AB v Lithuania and Another [2006] EWCA Civ 1529; [2007] 2 WLR 876; confirming [2005] EWHC 2437 (Comm); [2006] 1 All ER 731, Gloster J.

¹²¹ Conveniently to be found stated in Mustill and Boyd, Commercial Arbitration (2nd edn, 1989), 272. See (3rd edn, 2001), 270–1, ‘A Step in the Proceedings to Answer a Substantive Case’.

¹²² Eagle Star Insurance Co Ltd v Yuval Insurance Co Ltd [1978] 1 Lloyd’s Rep 357 at 361.

¹²³ Fayed v El Tajir [1987] 2 All ER 396: the omission of a State to intervene in a case of libel against its ambassador alleged to be contained in a memorandum of its diplomatic mission does not constitute a step in the proceedings.

¹²⁴ A Ltd v B Bank [1993] 1 April 1993, Saville J, transcript.

¹²⁵ Letters informing a tribunal of the nationality of an applicant or requesting that all correspondence be sent to the Foreign and Commonwealth Office do not constitute a step in the proceedings: Arab Republic of Egypt v Gamal Eldin and Another [1996] 2 All ER 237, Employment Appeals Tribunal.

¹²⁶ Kuwait Airways Corpn v Iraqi Airways Co (No 2) [1995] 1 Lloyd’s Rep 25 at 32, 37–8, affirmed by the House of Lords [2007] 1 AC 270; 129 ILR 713; [1995] 3 All ER 694 at 712. Evans J at first instance found no submission but on the different ground that subs 2(4) was not intended to prohibit the claim for State immunity being heard at the same time and in conjunction with other objections to jurisdiction. Judgment 3 July 1992, transcript at 23. See futher Dickinson, Selected Writings, 352, para 4.023.

¹²⁷ Employment Appeals Tribunal, 11 October 1984, 107 ILR 590.

¹²⁸ Arab Banking Corpn v The International Tin Council [1986] transcript, 15 January 1986, Steyn J. See also A Company v Republic of X [1990] 2 Lloyd’s Rep 520.

¹²⁹ JH Rayner (Mincing Lane) Ltd v The Department of Trade and Industry [1987] BCLC 667, Staughton J; Maclaine Watson v Dept of Trade and Industry [1988] 3 All ER 257; [1990] 2 AC 418; [1989] 3 All ER 523.

¹³⁰ In Intpro Properties (UK) Ltd v Sauvel and Others [1983] 1 All ER 658, Bristow J; [1983] 2 All ER 495 it was suggested but not decided that if proceedings fell within s 6 they could not also come within s 3. Overlap occurs under s 9; there the State’s consent to arbitration, which enables proceedings in respect of the arbitration to be treated as immune, may be given in respect of a dispute which would in any event be non-immune if proceedings had been brought in respect of it.

¹³¹ The jurisdictional requirements of RSC Ord 11, r 1 are now to be found in CPR 6, 20, and 21. See below, under ‘English law: procedure’.

¹³² White Book, CPR 6 at 249 (2009); see below, under ‘English law: procedure’.

¹³³ Jones v Saudi Arabia [2007] 1 AC 270; 129 ILR 713.

¹³⁴ Thai-Europe Tapioca Service v Government of Pakistan [1975] 1 WLR 1285 at 1491; [1979] 3 All ER 961 at 966–7; 64 ILR 81.

¹³⁵ Markesinis, ‘A “Breeze” of Change in the Law of Sovereign Immunity’ (1976) 35 Camb LJ 198 at 200–1.

¹³⁶ Higgins, ‘Recent Developments in the Law of Sovereign Immunity in the UK’ (1977) 71 AJIL 423 at 435.

¹³⁷ See below, under ‘English law, procedure’.

¹³⁸ NML Capital v Argentina [2011] UKSC 31; 3 WLR 273 at paras 38–9. Lord Phillips’ view was confirmed by Lord Mance at paras 93–4 who, after describing the anomalous situations which would arise for the English court in determining whether to enforce a foreign judgment against a foreign State pursuant to CJJA, s 31(1) in respect of other SIA sections relating to death or personal injuries, an employment contract, immovable property, a patent or a corporation not connected in some way with the UK, said ‘the territorial limits involved in these sections are understandable in proceedings actually relating to such contexts or interests. But they make no real sense as a basis for distinguishing between foreign judgments in respect of which state immunity is and is not said to exist’.

¹³⁹ I Congreso del Partido [1978] 1 QB 500 at 535; [1978] 1 All ER 1169 at 1197–8. Goff J also cited a decision of the Frankfurt Provincial Court in the opposite sense: Nada (Youssef M) Establishment v Central Bank of Nigeria [1976] Die Aktiengesellschaft 47, 25 August 1976, Frankfurt District Court.

¹⁴⁰ See Ch 9 ‘Jurisdictional connection of the proceeding with the forum State’.

¹⁴¹ The Convention had restricted the exception in clause 3 to a particularly close connecting jurisdictional link to found the jurisdiction of the State of the forum, namely the presence in the territory of an office, agency, or establishment of the foreign State.

¹⁴² HL, Hansard, vol 388, cols 63–8, 17 January 1978.

¹⁴³ Whilst abandoning any test of ‘commerciality of the act’, subs 2(1)(b) broadly preserves the European Convention’s one of ‘contractuality’ in that to lose immunity the defendant State is required to be a party to the relevant contract or obligation.

¹⁴⁴ Alcom Ltd v Republic of Colombia [1984] AC 580; [1984] 2 WLR 750; [1984] 2 All ER 6 at 10, HL.

¹⁴⁵ As first introduced, this type of transaction was limited to ‘any loan raised by a State irrespective of the purposes for which the borrowed money is to be applied’, but by reference to the ruling in Trendtex the opposition proposed that ‘any guarantee given by a State’ should be included and the clause was amended to its present form to embrace dealing by States in futures contracts, HL, Hansard, vol 390, col 1501, 16 March 1978; HC, Hansard, vol 949, col 416, 3 May 1978; vol 851, col 841, 13 June 1978; HL, Hansard, vol 394, col 315, 28 June 1978.

¹⁴⁶ Orascom Telecom Holding SAE v Republic of Chad & Ors [2008] EWHC 1841 (Comm); [2008] 2 Lloyd’s Rep 396 per Burton J at para 22, citing Dickinson, Selected Materials, 359, para 4.030.

¹⁴⁷ Despite a request from the opposition speaker for a definition, failing which the words should be omitted, no further elucidation was included in the Bill.

¹⁴⁸ 45 ILR 57 at 80, cited in I Congreso del Partido [1983] 1 AC 244; [1981] 2 All ER 1064 at 1072, HL; 64 ILR 307. Registration of a foreign judgment is not within SIA, s 3. AIC Ltd v Nigeria [2003] EWHC 1357 (QB) (13 June 2003).

¹⁴⁹ Australia and New Zealand Banking Corpn v The Commonwealth of Australia 21 February 1989, Evans J, transcript; cf an obiter dicta of Lord Millett in Holland v Lampen-Wolfe [2000] 1 WLR 1573 at 1587; 119 ILR 367, ‘[t]he context suggests a commercial relationship rather than a unilateral tortious act’. See further below on non-commercial torts.

¹⁵⁰ Dickinson, Selected Writings, 360, para 4.031, suggests that gifts and non-binding statements such as letters of comfort would be included.

¹⁵¹ Cf French law where exercise of puissance publique is not necessarily synonymous with non-commercial activity and UNCSI speaks of the performance of acts in the exercise of sovereign authority apparently unrelated and undefined by the definition of commercial transaction: Art 2(1)(a)(iii) and (iv) and 2(1)(c). Dessedjian and Schreuer, ‘Le Projet d’articles de la Commission du droit international des Nations Unies sur les immunités des États’ (1992) 96 RGDIP 299 at 323.

¹⁵² Lord Diplock in Alcom noted that the SIA did not follow a straightforward dichotomy of public and private acts. However, in declaring non-immune an alleged representation by Member States of the creditworthiness of the ITC, Evans J rejected a contention that s 3(3)(c) envisaged three categories of acts: commercial, in exercise of sovereign authority, and activities defined by the words in parenthesis ‘(whether of a commercial, industrial, financial, professional, or other similar character)’. He concluded that the word ‘similar’ served only to limit or broaden the activities in parenthesis by reference to the preceding category of commercial acts. He accordingly decided that to be within s 3(3)(c) an act was either immune as ‘in exercise of sovereign authority’ or non-immune as ‘commercial’: Australia and New Zealand Banking Group v Commonwealth of Australia; Amalgamated Metal Trading Ltd v Dept of Trade, QBD Commercial Court, Evans J, 21 February 1989, transcript at 54.

¹⁵³ For example, Venne v Democratic Republic of the Congo [1971] 22 DLR 3d 169; 64 ILR 24.

¹⁵⁴ Orascom Telecom Holding SAE v Republic of Chad & Ors [2008] EWHC 1841 (Comm); [2008] 2 Lloyd’s Rep 396, Burton J, citing Dickinson, Legal Materials, 159, para 4.030, holding SIA, s 3(3)(b) to apply to a transaction by which oil revenues, pursuant to commercial oil contracts, were not simply passed direct to the State of Chad but channelled through the account of a London bank as a mechanism to allow for the loans of the World Bank to Chad to be safely and transparently repaid.

¹⁵⁵ I Congreso del Partido [1983] 1 AC 244; [1981] 2 All ER 1064 at 1074, HL; 64 ILR 307.

¹⁵⁶ Propend Finance Pty Ltd v Sing [1997] 111 ILR 611, CA, 2 May 1997. Lord Wilberforce’s words have been applied so as to defeat a claim for payment for services under the s 4 exception for employment contracts; a medical office used and paid for by the government of Egypt to provide guidance, advice, and expert care to patients referred by that government for medical treatment in the UK did not come within the ‘commercial purposes’ within the exception to immunity contained in s 4(3) of the SIA: Arab Republic of Egypt v Gamal Eldin and Another [1996] 2 All ER 237, Employment Appeals Tribunal, at 247.

¹⁵⁷ Holland v Lampen-Wolfe [1998] 1 WLR 188, CA; [2000] 1 WLR 1573, HL.

¹⁵⁸ Littrell v USA (No 2) [1994] 4 All ER 203 at 217; [1995] 1 WLR 82. See further Ch 19 below on the armed forces.

¹⁵⁹ For the same uncertainty arising from the significance of the requirement of ‘proceedings relating to’ a commercial transaction see Dickinson, Selected Writings, 357, para 4.029.

¹⁶⁰ [1981] 2 All ER 1073.

¹⁶¹ Kuwait Airways Corpn v Iraqi Airways Co (No 2) [1995] 1 Lloyd’s Rep 25, CA; [2001] 1 WLR 429; [1995] 3 All ER 694, HL; 103 ILR 340. See further, Ch 12 on Individuation and change over time in activity.

¹⁶² Lord Wilberforce proposed an amendment deleting the juridictional requirement but Elwyn Jones LC justified the retention of the restriction on the ground that the jurisdiction with regard to contracts under Ord 11 of the Rules of the Supreme Court would be considered by many foreign countries as excessive in relation to contracts made in the exercise of sovereign authority which were not to be performed in the UK, and which contained no express agreement for UK juridiction. HL, Hansard, vol 389, col 1503, 16 March 1978.

¹⁶³ Maclaine Watson v Dept of Trade and Industry [1988] 3 All ER 257 at 315, 336. It is questionable whether the draftsmen of the ECSI intended the words ‘an obligation of the State … which by virtue of a contract … falls to be performed … in the UK’ to be construed as extending to a contract to which the State itself was not a party.

¹⁶⁴ Contracts for scholarships or subsidies may come within this exception: see Ch 12 text at fn 15 as to the procedural reforms of the 1970s which brought a closer approximation in England to an administrative court with a separate Crown Office List of judges familiar with public law.

¹⁶⁵ Donegal International Ltd v Zambia and Another [2007] EWHC 197 (Comm) where the immunity on assignment was conceded.

¹⁶⁶ Central Bank of Yemen v Cardinal Financial Investment Corpn, 23 October 2000, CA. See also Evans J in Kuwait Airways Corpn v Iraqi Airways Co, Judgment 16 April 1992. To clarify the question whether proceedings may be brought as a commercial transaction on a bill of exchange given by a State in respect of an underlying immune activity, the Australian FSIA, s 19 provides an express exception for proceedings brought on a bill of exchange entered into by a foreign State but only where so entered in connection with a non-immune transaction or event.

¹⁶⁷ Maclaine Watson v Dept of Trade and Industry [1988] 3 All ER 257; [1989] 3 All ER 523.

¹⁶⁸ Stated by s 4(6) to include proceedings in respect of any statutory rights or duties to which the State or individual are entitled or subject as employer or employee. Where the claimant is an independent contractor, the claim would seem to be governed by s 3. Claims by job-seekers are not within the exception to immunity since they are not employees, there is no contract of employment, and the State is under no obligation; further the job sought may not fall to be performed in the UK: Banai v Canadian High Commission and Others [1990] EAT/65/90, 12 December 1990, Employment Appeals Tribunal. This distinction was applied to retain immunity where appointment to a post was alleged to have been refused on the ground of sexual discrimination: Fogarty v UK ECHR App 37112/97, Judgment 21 November 2001; (2001) 34 EHRR 302; 123 ILR 53.

¹⁶⁹ Arab Republic of Egypt v Gamal Eldin [1996] 2 All ER 237 at 246–7 where a medical office of the State was treated as maintained for purposes in the exercise of sovereign authority.

¹⁷⁰ Such persons are defined as ‘neither a national of the UK nor habitually resident there’ and s 4(5) defines a national of the UK: Tai v USA, 10 December 1986, Industrial Tribunal, Col T/1812/67.

¹⁷¹ For comparison of this subsection regarding choice of law and ECSI, Art 5(2)(c) see Yang, State Immunity in International Law (2012), Ch 4, at 149–50 who concludes that SIA will apply whether or not the UK court has exclusive jurisdiction.

¹⁷² Ahmed v Saudi Arabia [1996] ICR 25; [1996] 2 All ER 248, CA; Sengupta v Republic of India [1983] ICR 221; 64 ILR 352, a case decided under the common law. And one which appears to have had more regard to the purpose than the commercial nature of the clerical work involved: ‘a contract to work at a diplomatic mission in the work of the mission (at however lowly a level) is a contract to participate in the public acts of the foreign sovereign’: [1981] ICR at 228.

¹⁷³ The Federal Republic of Nigeria v Ogbonna [2012] 1WLR 130, Underhill J sitting alone as the Employment Appeals Tribunal at para 12.

¹⁷⁴ See Ch 14 under ‘the employment exception’, UNCSI, Art 11.

¹⁷⁵ Fogarty v UK ECHR App 37112/97, Admissibility 1 March 2000; Judgment 21 November 2001 (2001) 34 EHRR 302. In consequence of these rulings the immunity afforded by s 16(a) if pleaded in respect of lower grade staff, particularly those engaged in ancillary institutions, may also be required to be ‘read down’ as disproportionate, Al-Adsani v UK (2002) EHRR 111; 123 ILR 23.

¹⁷⁶ Cf Cudak v Lithuania ECtHR Judgment 23 March 2010 (App No 15869), para 72, wrongful dismissal of a switchboard operator in a foreign embassy. Having regard to the facts that the applicant’s dismissal and the ensuing proceedings arose originally from acts of sexual harassment that had been established by the Lithuanian Equal Opportunities Ombudsman, with whom the applicant had filed her complaint, four judges, Casadevall, Zagrabelsky, Cabral Barreto, and Popovic, in a separate concurring opinion regretted that the Court had not ordered a retrial or the reopening of the case, to provide a statement of the nature of the Convention violation.

¹⁷⁷ Arab Republic of Egypt v Gamal Eldin and Another [1996] 2 All ER 237, Employment Appeals Tribunal (drivers of Egyptian medical mission held members of staff of mission).

¹⁷⁸ In El Diwany v Hansen, the Ministry of Justice and the Police, Norway and Anor [2011] EWHC 2077 in a claim for libel against a Norwegian police officer and the Norwegian Ministry, the claim was dismissed against the Ministry on the ground that any police communications made with the media were acts jure imperii to promote better understanding of police work and hence immune by SIA, s 1(1); further, no evidence had been produced, as required by CPR r 6.37.24, when the application was made for service out of the jurisdiction, that the Ministry as a foreign state was not immune from suit.

¹⁷⁹ CPR rr 6.20 and 6.21 (formerly RSC Ord 11, r 1). See below, on ‘English law: procedure’.

¹⁸⁰ Whether an act of conspiracy in the UK by a foreign State causing personal injuries outside the UK comes within SIA, s 5 is one of the issues raised in Heiser and Ors v Iran and Anor (2012) QB (Singh J) 02/10/2012 seeking the issue of a writ out of the jurisdiction against Iran with a view to enforcing in the UK US judgments pursuant to ATCA given against Iran. See below, on Procedure.

¹⁸¹ JH Rayner (Mincing Lane) v Dept of Trade and Industry [1987] BCLC 667.

¹⁸² Al-Adsani v Government of Kuwait and Others, CA, 12 March 1996; 107 ILR 536; Jones v Saudi Arabia [2007] 1 AC 270; 129 ILR 713.

¹⁸³ Al-Adsani v Government of Kuwait and Others, 100 ILR 465; CA 21 January 1994, Butler Sloss, Evans, and Rose LJJ; judgment in default of appearance was given against the Sheikh who was alleged to have instigated the attack.

¹⁸⁴ Al-Adsani v Government of Kuwait and Ors, Mantell J, 103 ILR 420, CA 12 March 1996; 107 ILR 536. Stuart-Smith LJ stated that ‘the trial judge entertained the suspicion, which I share, that relatively minor head of claim’ relating to the threats ‘may have been introduced to overcome problems of service and jurisdiction’: 544. Case note by Byers, (1996) 68 BYIL 537 at 541.

¹⁸⁵ Al-Adsani v UK (2002) 34 EHRR 111; 123 ILR 24. Judges Pelonpaa and Bratza in a separate opinion, agreeing with the majority, pointed out that a decision to the contrary would have removed immunity from execution as well as immunity from adjudication if the trumping effect of a human rights violation was to be effective. Judges Rozakis, Caflisch, Wildhaber, Cost, Cabral Barreto, and Vaji dissented. See further Chs 3 and 15.

¹⁸⁶ Juan Ismael & Co Inc v Government of the Republic of Indonesia [1955] AC 72; [1954] 3 All ER 236; 21 ILR 95; Rahimtoola v Nizam of Hyderabad [1958] AC 379; [1957] 3 All ER 441; 24 ILR 175. It is uncertain how this provision affects the inviolability or confidentiality of documents constituting the archives of a diplomatic mission as protected by the Vienna Convention on Diplomatic Relations.

¹⁸⁷ Intpro Properties (UK) Ltd v Sauvel and Ors [1983] 1 All ER 658 Bristow J; [1983] 2 All ER 495, CA. The Court of Appeal construed s 16(1)(b) as only applying to proceedings relating to title or possession since the word ‘use’ which appears in s 6(1)(b) was omitted from this later section. This construction would seem to conflict with international law as illustrated by the German Federal Constitutional Court’s decision in Jurisdiction over the Yugoslav Mission, (Germany) 38 ILR 162.

¹⁸⁸ Re Rafidain Bank [1992] BCLC 301; 101 ILR 332.

¹⁸⁹ On the facts of the case, this obligation on the part of the UK may have been suspended since a mandatory UN Security Council resolution given effect in UK legislation had at the time of the proceedings established a freeze on the transfer of all Iraqi assets.

¹⁹⁰ Cf Dralle v Republic of Czechoslovakia, Austrian Supreme Ct, 10 May 1950; 17 ILR (1950); 156 Case No 41; UN Legal Materials 183.

¹⁹¹ JH Rayner (Mincing Lane) Ltd and Ors v Department of Trade and Industry [1987]; BCLC 667 Staughton J. But see Gerber Products Co v Gerber Foods International Ltd [2002] EWHC 428 (Ch).

¹⁹² In the International Tin litigation a lacuna in this section was noted, it being contended that the membership of the ITC, in addition to States, comprised the EEC, an international organization which, not being a State, rendered s 8 applicable and the proceedings brought against the Member States relating to their membership of EEC non-immune. The Court of Appeal expressed itself unwilling to accept such a construction, questioning whether the ITC was properly to be construed as ‘an unincorporate body’ within the meaning of the section or suggesting that immunity was solely to be removed where no member was entitled to plead State (not IO) immunity. Amendment of the section was recommended: Re International Tin Council [1988] 3 All ER 257 at 358, CA. Cf ECSI, Art 6 and the commentary thereto which makes plain that immunity is removed by reason of the ‘company, association or other legal entity’ being one recognized by municipal law and having links with the forum state such as its seat, registered office, or principal place of business.

¹⁹³ If on the overall construction of a transaction a State is held to be bound by a written arbitration agreement that will be sufficient to find the State as a party had agreed in writing to refer the dispute to arbitration within the meaning of s 9 of the State Immunity Act, Svenska Petroleum Exploration AB v Lithuania and Anr [2006] EWCA Civ 1529, para 116.

¹⁹⁴ Described as ‘an unlikely dichotomy between the express treatment of arbitration in Part I of the 1978 Act and the suggested tacit, but nonetheless (if achieved) very important, removal of state immunity in respect of judgments relating to commercial transactions’ … (by SIA, s 3(1)) in NML Capital v Argentina [2011] UKSC 31; 3 WLR 273 per Lord Mance, para 89, also Lord Phillips, para 30, Lord Collins, para 112, Lord Clarke para 149.

¹⁹⁵ For comment on this article, see Ch 11.

¹⁹⁶ Cf ECSI, Art 12(1) which limits the removal of immunity by a State’s submission to arbitration to ‘the jurisdiction of a court … on the territory or according to the law of which the arbitration has taken or will take place in respect of any proceeding relating to:

a) the validity or interpretation of the award;

b) the arbitration procedure;

c) the setting aside of the award;

unless the arbitration agreement otherwise provides’.

¹⁹⁷ Svenska Petroleum Exploration AB v Lithuania and Anr [2006] EWCA Civ 1529; [2007] 2 WLR 876; also NML Capital v Argentina [2011] UKSC 31 per Lord Mance, para 99.

¹⁹⁸ In AIC Ltd v Nigeria [2003] EWHC 1357, paras 25–6; 127 ILR 821. See NML v Argentina [2011] 3 WLR 273 applying this construction in construing ‘proceedings relating to a commercial transaction’ in SIA, s 3 as applying to immunity of the foreign US judgment itself and not the underlying commercial transaction, Lord Phillips para 30 and Lord Collins para 112.

¹⁹⁹ See Fox, ‘States and the Undertaking to Arbitrate’ (1988) 37 ICLQ 1, 14–16; and for another view Mann, Further Studies in International Law (1990), 319.

²⁰⁰ In applying the SIA’s special provisions directed at preventing the Act having retrospective effect, Lloyd J in Planmount Ltd v Republic of Zaire [1981] 1 All ER 1110; 64 ILR 268 indicated that he considered that in any event with regard to claims arising prior to the commencement of the Act, the restrictive rule now applied in common law to actions both in personam and in rem, a view confirmed by Lord Wilberforce in I Congreso del Partido.

²⁰¹ Cf Thor Shipping A/S v The Ship ‘Al Duhail’ [2008] FCA 1842, before a single judge (Justice Dowsett) of the Federal Court of Australia. The case involved proceedings for damages by the owner of a cargo vessel, Thor Shipping A/S, which had been chartered to carry a ship, the Al Duhail from New Zealand to the Seychelles. The ship was not loaded into the cargo vessel but sailed from New Zealand to Australia. The allegation was that the charterparty (contract) was entered into by agents of the Amir of Qatar, being the head of State of Qatar, who was the owner of the ship at the time that the proceedings commenced. In the course of the proceedings, the Amir claimed that he enjoyed head of State immunity in his private capacity as an owner of property. The Court concluded that the head of State was entitled to immunity in this instance as he did not fall within any relevant exceptions.

²⁰² The Akademie Fyodorov, SA Supreme Ct, 19 April 1996, 131 ILR 460 allowed pre-award attachment. A warrant for the arrest of a sister ship as security for claim in the London arbitration allowed as a process for enforcement of an arbitration award within the meaning of SA Foreign States Immunities Act, s 14(1)(b)(ii) and consequently barred against the property of a foreign State. Use of ship for environmental research was held to be non-commercial and hence the ship held immune.

²⁰³ In proceedings to recover the salvage costs in respect of a cargo the cargo’s status is to be determined at the time of salvage, Ministry of Trade of Republic of Iran v Salvage (International) Ltd (The ‘ALTAIR’) [2008] EWHC 612 Comm; [2008] 2 Lloyd’s Rep 90 Gross J at para 84 held ‘As to s 10(4)(b), the reference to “such a cargo” in that subsection related only to the cargo “belonging to that State” in subsection (a); it was irrelevant whether or not the cargo was “commercial” or not’.

²⁰⁴ UKTS (1977) No 104 Cmnd 7040, given effect by the State Immunity Act (Merchant Shipping) (Union of Soviet Socialist States) Order 1978 (SI 1978/1524); now revoked by the State Immunity (Merchant Shipping) (Revocation) Order 1999 (SI 1999/668).

²⁰⁵ In Giuseppe di Vittorio, The [1998] 1 Lloyd’s Rep 136 and Bridge Oil Ltd v Owners and/or Demise charterers of the ship ‘Giuseppe di Vittorio’ [1998] 2 CLC 165, the English and Scottish courts refused to extend this variation to the Republic of Ukraine as a successor State to the USSR.

²⁰⁶ Commercial purposes means, by s 17(1), purposes of any ‘commercial transaction’ as defined by s 3(3).

²⁰⁷ R v Inland Revenue Commissioners, ex parte Camacq Corpn and Anr [1990] 1 All ER 173, Kennedy J; [1990] 1 All ER 184, CA per Dillon LJ at 186. Case note by Staker (1990) 61 BYIL 377.

²⁰⁸ VCDR, Art 41(1).

²⁰⁹ Vienna Convention on Diplomatic Relations 1961, Art 23, para 23.

²¹⁰ HC, Official Report, Standing Committee A, Finance (No 2) Bill, 21 June 1988, col 578.

²¹¹ Venables, ‘Sovereign Immunity and Repayment of Withholding Tax’ (1991) The Offshore Tax Planning Rev 5.2.2 at 83.

²¹² The SIA, s 15 enables the UK to vary by Order in Council the immunity provisions conferred by the SIA where they are not reciprocally granted to the UK or where they are ‘less than those required by any treaty, convention or other international agreement to which that State and the UK are parties’, as was done in relation to ships and cargoes owned by the USSR. See the UK SIA (Merchant Shipping (USSR)) Order 1978 above.

²¹³ Alcom Ltd v Republic of Colombia [1984] AC 580; [1984] 2 WLR 750; [1984] 2 All ER 6, HL; 74 ILR 170. The statute only clearly links the two in Admiralty proceedings relating to a ship or its cargo, which is made an exception in s 10 to immunity from adjudication and for which an action in rem is permitted provided both the ship attached and the ship in respect of which proceedings are brought are in use or intended for use for commercial purposes.

²¹⁴ It will be remembered that by way of compromise that Convention respected international law’s prohibition of coercive measures against a State without its consent but enacted an express obligation on States to give effect to any judgment rendered in conformity with the Convention; only for arbitral awards or in the case of a State party making a declaration under Art 24, and in respect of a final judgment, was attachment permitted against property of the State in use or intended use for commercial purposes.

²¹⁵ HL, Hansard, vol 388, col 61, 17 January 1978, Baroness Elles; col 67, Lord Wilberforce.

²¹⁶ A Company v Republic of X [1990] 2 Lloyd’s Rep 520, Saville J.

²¹⁷ The expressions ‘any process for enforcement of a judgment’ and ‘any process in rem for its … sale’ (s 13(2)(b) and (4)) are most naturally construed as references to the judicial process of seeking and obtaining an order and not the administrative measures which put the order for sale into effect; consequently when, after a court order for sale of a ship, an O in C was enacted prohibiting any ‘process for enforcement of a judgement’ against such a ship, it was not to be construed retrospectively as preventing administrative measures giving effect to the sale that had been ordered prior to the O in C’s enactment: Bridge Oil Ltd v Owners and/or Demise Charterers of the Ship ‘Giuseppe di Vittorio’ [1998] 2 CLC 165; [1998] 1 Lloyd’s Rep 136.

²¹⁸ Sabah Shipyard (Pakistan) Ltd v Islamic Republic of Pakistan [2002] EWCA Civ 1643; [2002] All ER (D) 201.

²¹⁹ Wilkes, ‘Enforcing Anti-suit Injunctions against Foreign State’ (2004) 53 ICLQ 512.

²²⁰ The original exception was limited to ‘enforcing a judgment against a State where and to the extent that the State had given written consent’; the broader wording of the amended clause ‘goes much further’: HL, Hansard, vol 389, col 1522, 16 March 1978, Elwyn-Jones LC. In Committee in the Lords, Lords Wilberforce and Denning argued that the proposed exception relating to post-judgment enforcement against commercial property without the consent of the State should be widened to include pre-judgment interlocutory injunctions: HL, Hansard, vol 389, col 1526, 16 March 1978. Objection on behalf of the government was made to this proposal on two grounds: that there was very serious difficulty if court orders subject to personal sanctions were to be allowed against foreign States (HL, Hansard, vol 389, col 1936), and that the anomalous position of central bank funds required separate treatment (HL, Hansard, 3 May 1978, col 417).

²²¹ See the form of written consent in Camdex International Ltd v Bank of Zambia [1996] 3 All ER 431; Sabah v Pakistan [2002] EWCA Civ 1643.

²²² A Company v Republic of X [1990] 2 Lloyd’s Rep 520, Saville J at 523.

²²³ Injunctions are similarly not available against separate entities which have submitted to the jurisdiction but are entitled to immunity in respect of activities in exercise of sovereign authority (s 14(2) and (3)), but there is no prohibition of injunctions (Mareva or otherwise) against third parties in possession of State assets. For immunity from registration of foreign judgment, see AIC Ltd v Nigeria and Anr [2003] EWHC 1357 (QB).

²²⁴ HL, Hansard (5th series), vol 389, col 1935–8 (23 March 1978).

²²⁵ HL, Hansard (5th series), vol 389, col 1937.

²²⁶ See Hispano Americana Mercantil SA v Central Bank of Nigeria [1979] 2 Lloyd’s Rep 277 where the CA allowed an injunction to continue against a central bank on the ground that the SIA provisions had no retrospective effect.

²²⁷ The Brussels Convention as amended by its additional Protocol is even more favourable to the State. Article 5 provides that if in the opinion of the court there is doubt about the non-commercial character of the ship or cargo, a certificate signed by the diplomatic representative of the State to which the ship or cargo belongs ‘shall be conclusive evidence that the ship or cargo falls within the terms of Art. 3 [public vessels operated exclusively in non-commercial service] but only for the purpose of obtaining the discharge of any seizure, arrest or detention effected by judicial process’.

²²⁸ Juan Ismael & Co Inc v Government of the Republic of Indonesia [1955] AC 72; [1954] 3 All ER 236.

²²⁹ Alcom Ltd v Republic of Colombia [1984] AC 580; [1984] 2 WLR 750; [1984] 2 All ER 6, HL; 74 ILR 170.

²³⁰ Alcom Ltd v Republic of Colombia and Ors [1984] 2 Lloyd’s Rep 31, Hobhouse J; [1983] 3 WLR 906; [1984] 1 All ER 1, CA, Donaldson MR, May and Dillon LJJ; [1984] AC 580; [1984] 2 WLR 750; [1984] 2 All ER 6, HL; 74 ILR 170.

²³¹ Orascom Telecom Holding SAE v Republic of Chad & Ors [2008] EWHC 1841 (Comm); 2 Lloyd’s Rep [2008] 397. Cf to the same effect, EM Ltd v Republic of Argentina 473 F.3d 463 (2nd Cir 2007).

²³² As to the making of a winding-up order of a State entity, see Dickinson, Selected Writings, 410, para 4.107.

²³³ Dicey, Morris, and Collins, The Conflict of Laws (16th edn, 2012), Rule 34, para 14-002; Briggs, The Conflict of Laws (2008).

²³⁴ Thus CJJA, s 31(4) preserves, with regard to the recognition and enforcement of judgments against a foreign State, ss 12, 13, and 14(3) and (4) which relate to the service of process, and procedural privileges of a foreign State.

²³⁵ See Dicey, Morris, and Collins, The Conflict of Laws (16th edn, 2012), Rule 51, 680.

²³⁶ Section 2(1)(b) excludes the registration of a judgment that cannot be enforced by execution in the country of the original court, and s 4(1)(v) requires the registration of a judgment to be set aside if enforcement would be contrary to the public policy of the registering court. Further, s 4(3)(c) deems the original court as without jurisdiction where the defendant to the original judgment was a person ‘entitled under the rules of international law to immunity from the jurisdiction of the courts of the original country; and had not submitted to the jurisdiction of that court’.

²³⁷ Stanley Burnton J stated: ‘The conversion of a judgment of the original court into a judgment of this court, enforceable by execution, requiring the defendant to pay a sum of money to the claimant, and requiring the defendant to pay the claimant’s costs incurred in relation to the registration of the judgment, is manifestly an exercise by the court of its jurisdiction’ (para 18).

²³⁸ In so ruling he found support in SIA, s 9 which made an exception to immunity, where a State had agreed in writing to submit a dispute to arbitration, ‘for the proceedings … which relate to the arbitration’. As most arbitrations related to commercial transactions he considered it difficult to see the need for a separate exception if for the purpose of the Act proceedings relating to the arbitration were to be construed as referring to the underlying transaction. This reading may neglect the prime purpose of s 9 which was to construe consent to arbitration as submission to the English court’s jurisdiction.

²³⁹ Discussed in the following section.

²⁴⁰ The Administration of Justice Act 1920 and the Foreign Judgments (Reciprocal Enforcement) Act 1933.

²⁴¹ NML Capital v Argentina [2011] UKSC 31; 3 WLR 273. Dickinson, ‘State immunity and Foreign Judgments in the United Kingdom—The Vulture Swoops’ (2011) Lloyd’s Maritime and Commercial Law Quarterly 581; Fox, ‘… rain on the just and on the unjust’ (2012) 128 LQR 10.

²⁴² Rules of the Supreme Court (Amendment No 2) 1983 (SI 1983/1181) with RSC, Ord 11, r (1)(1) providing: ‘… service of a writ out of the jurisdiction is permissible with the leave of the court if in the action begun by the writ … (m) the claim is brought to enforce any judgment or arbitral award’. As to the Supreme Court’s distinction between the Court’s discretion to permit a new base of immunity without a new application and fresh service out the bases of immunity, see on Procedure below.

²⁴³ [2011] UKSC 31; 3 WLR 273. This ruling would seem to be at variance with the international law criterion stated by the ICJ in the Jurisdictional Immunities of the State Judgment, para 130 which would seem to adopt the nature of the underlying transaction, the criterion which was adopted in the minority view in NML of Justices Phillips and Clarke. See further Chapters 16 and 17.

²⁴⁴ NML Capital v Argentina [2010] EWCA; [2010] 1 CLC 38.

²⁴⁵ [2009] EWHC 110 (Comm); [2009] QB 579, Blair J, para 31.

²⁴⁶ NML per Lord Collins, para 109.

²⁴⁷ NML per Lord Mance.

²⁴⁸ NML per Lord Collins, para 111.

²⁴⁹ [2009] QCCA 728; revd [2010] SCC 40; [2010] 2 SCR 571.

²⁵⁰ [2011] UKSC 31; 3 WLR 273.

²⁵¹ Dicey, Morris, and Collins, The Conflict of Laws (14th edn), vol I, para 14-019. The original form of s 31 in the Bill extended to all States the system of ‘indirect’ rules of jurisdiction which generally prevailed in English law prior to the 1968 Brussels Convention under the Administration of Justice Act 1920 and the Foreign Judgments (Reciprocal Enforcement) Act 1933 on the basis of reciprocity to members of the British Commonwealth. But was amended in the Committee stage in the House of Lords to the words as enacted in s 31 with Lord Hailsham Lord Chancellor explaining: ‘As drafted the Bill would have perpetuated the old and absolute view of state immunity in respect of foreign judgments. We now propose in a new Clause 29 subsection (1) to recognise foreign judgments if the rules of immunity applied by the foreign court are similar to our own, or not less favourable …’. Fox, ‘Enforcement of Judgments Against Foreign States: “… the kind of coherent law we ought to have?”’ (2009) 125 LQR 544.

²⁵² Volume I, 610, para 14R-094.

²⁵³ References in subsection (1) to a judgment given against a State include references to judgments of any of the following descriptions given in relation to a State:

(a) judgments against the government, or a department of the government, of the state but not (except as mentioned in paragraph (c)) judgments against an entity which is distinct from the executive organs of government;

(b) judgments against the sovereign or head of state in his public capacity;

(c) judgments against any such separate entity as is mentioned in paragraph (a) given in proceedings relating to anything done by it in the exercise of the sovereign authority of the state.

²⁵⁴ Propend Finance Pty Ltd v Sing [1997] 111 ILR 611, CA, 2 May 1997.

²⁵⁵ The main features of the Civil Procedure Rules (CPR) are simplified procedures, using a new terminology, and active case management by the court allocating cases after service of the defence into small claims, fast track cases, and multitrack cases. A case begins with the claimant (formerly the plaintiff) issuing a claim form and particulars of claim (formerly a writ); a defendant may respond by filing an acknowledgment of service and a defence, and a claimant may file a reply to a defendant’s defence. The previous procedural arrangements relating to service of the claim on a foreign State (CPR 6.44), disputing jurisdiction (CPR 11), and obtaining a default judgment against a State (CPR 12, 40.10) have been incorporated into the CPR with little change of substance, but earlier authorities are no longer generally of any relevance.

²⁵⁶ Incorporated into English law by the Diplomatic Privileges Act 1964.

²⁵⁷ Decision of Butler-Sloss P, 15 December 2004, as cited in the judgment of the Court of Appeal.

²⁵⁸ Harb v King Fahd Abdul Aziz [2005] EWCA Civ 632; [2005] 2 FLR 1108. Further proceedings as to whether the issue of immunity in the case barred its being heard in public were discontinued on the King’s death.

²⁵⁹ Aziz v Aziz and Sultan of Brunei [2007] EWCA Civ 712; [2008] 2 All ER 501, per Lawrence Collins LJ, paras 93, 137; Sedley LJ, paras 131–2. See further Ch 17. As to the question of embarrassment of a foreign sovereign, see further Korea National Insurance Corpn v Allianz Global Corporate and Speciality AG [2008] EWCA Civ 1355; The Times 22 December 2008. See Global Torch Management v Apex Global Management Ltd [2013] EWCA Civ, paras 13–15.

²⁶⁰ Per Lord Atkin in The Arantzazu Mendi [1939] AC 256, at 264; 9 ILR 60.

²⁶¹ R v Secretary of State of Foreign and Commonwealth Office, ex parte Samuel [1989] CA; 83 ILR 232. Decision to evict squatters from diplomatic premises after expiry of limitation period confirmed by CA; not open to judicial review by the courts. In confirming the Secretary of State’s decision, Fox LJ said: ‘One would not expect to confide to a Secretary of State the determination of ordinary English domestic law. But international law is another matter.’‘The practice [of the FCO] is that certificates are issued only once it has been established that an issue which can properly be certified needs to be resolved for the proper disposition of legal proceedings. This means that the FCO seldom, if ever, issue a certificate of this kind on the sole application of one party to an action. It is usually better and more convenient for a question to be formulated by the court once it has been able to form a view, with the assistance of both or all parties, whether a certificate is required in order to enable it to dispose of the issue, and, if so, on what question’: letter from A. Aust, Legal Counsellor, to a firm of solicitors, in (1994) BYIL 66; (1995) UKMIL 647–8. The same letter stated that a certificate had never before been given as to matters mentioned in s 21(d) of the 1978 Act (receipt of a document by a foreign State).

²⁶² R (on the application of HRH Sultan of Pahang) v Secretary of State for the Home Department [2011] EWCA Civ 616 (25 May 2011), per Maurice Kay LJ at para 11.

²⁶³ R (on the application of Alamieyeseigha) v Crown Prosecution Service [2005] EWHC 2704 (Admin), paras 32, 39–40; Pocket Kings v (1) Safenames Ltd, (2) Kentucky [2010] 2 Ch 438, para 40.

²⁶⁴ R v Secretary of State for Foreign Affairs, ex parte Trawnik, The Times, 18 April 1985, Div Ct; 21 February 1986, CA, per Forbes J: ‘I accept that the court is entitled to look at a certificate (such as these) to see whether, in the first place, it is what it purports to be; namely, a certificate issued by a Secretary of State or someone authorised to issue it on his behalf. If there is evidence to show that it is not a genuine certificate at all, then it is a complete nullity and the court can say so. […] I also accept that the court can compare the matter which is certified with the words of the statute to see whether or not the certificate, on its face, falls within the sphere allotted by the statute to the Secretary of State. […] But what I cannot accept is that the court, in the face of the statutory provision that the certificate is conclusive, can go further. In particular, I do not accept that the court can investigate the process by which the Foreign Secretary arrives at the statement he makes in the certificate. The fact that the certificate is conclusive marks its content out as the exclusive sphere of the Foreign Secretary and prohibits the courts from intruding into that sphere.’ See also R v Ministry of Defence, ex parte Smith [1996] QB 517; R v Secretary of State for Home Department, ex parte Launder [1997] 3 All ER 61. These principles were recently confirmed by the Court of Appeal in R (on the application of HRH Sultan of Pahang) v Secretary of State for the Home Department [2011] EWCA Civ 616 (25 May 2011), per Maurice Kay LJ at paras 14–17.

²⁶⁵ HC Hansard (5th series), vol 983, written answers, cols 277–9, 23 May 1980, Sir Ian Gilmour MP.

²⁶⁶ Republic of Somalia v Woodhouse Drake & Carey (Suisse) SA, The Mary [1993] 1 QB 53; 94 ILR 199, per Hobhouse J at 382. See also Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2001] 1 Lloyd’s Rep 161; [2001] 1 All ER (Comm) 557 at para 358.

²⁶⁷ British Arab Commercial Bank Plc v The National Transitional Council of the State of Libya [2011] EWHC 2274 (Comm), para 25: ‘As Lord Atkin put it in a well known passage in The Arantzazu Mendi [1939] AC 256 (at page 264), “Our State cannot speak with two voices on such a matter, the judiciary saying one thing, the executive another. Our Sovereign has to decide whom he will recognise as a fellow sovereign in the family of States.…”’ For a recent application of this principle, see R (on the application of HRH Sultan of Pahang) v Secretary of State for the Home Department [2011] EWCA Civ 616 at [14] and following, per Maurice Kay LJ, and [30], per Moore-Bick LJ.

²⁶⁸ See Warbrick, ‘British Policy and the National Transitional Council of Libya’ (2012) 61 ICLQ 247 for a detailed account of the UK’s recent practice relating to recognition. It would seem that unlike formerly where recognition was used to delay a new regime assuming full powers of a State, its political use in the 2011 issue of an executive certificate served to ‘try to help the process come about by conferring on the rebels the advantages which recognition brings’.

²⁶⁹ See Warbrick, ‘British Policy and the National Transitional Council of Libya’, 247 for a detailed account of the UK’s recent practice relating to recognition.

²⁷⁰ GUR Corpn v Trust Bank of Africa [1997] QB 559; [1986] 3 All ER 449. Kuwait Airways Corpn v Iraqi Airways Co (No 2) [1995] Lloyd’s Rep 25, CA. ‘Her Majesty’s Government has never given up the right to inform the courts as to recognition or non-recognition of States, and the public policy need for the courts to follow that information, spoken to by Lord Atkin and others, remains’ (para 149).

²⁷¹ HC Hansard (5th series), vol 983, written answers, cols 277–9, 23 May 1980, Sir Ian Gilmour MP. The text reads: ‘We have conducted a re-examination of British policy and practice concerning the recognition of governments. This has included a comparison with the practice of our partners and allies. On the basis of this review we have decided that we shall no longer accord recognition to Governments. The British Government recognises States in accordance with common international doctrine. We have therefore concluded that there are practical advantages in following the policy of many other countries in not according recognition to governments. Like them we shall continue to decide our dealings with regimes which come to power unconstitutionally in the light of our assessment of whether they are able of themselves to exercise effective control of the territory of the State concerned, and seem likely to continue to do so. In future cases where a new regime comes to power unconstitutionally, our attitude on the question of whether it is to be treated as a government will be left to be inferred from the nature of the dealings, if any, which we may have with it, and in particular whether we are dealing with it on a government to government basis.’

²⁷² Warbrick, ‘British Policy and the National Transitional Council of Libya’, 251.

²⁷³ Republic of Somalia v Woodhouse Drake & Carey (Suisse) SA, The Mary [1993] 1 QB 53; 94 ILR 199, per Hobhouse J at 382. On the evidence before it the court was not satisfied that the interim government was anything more than one faction seeking to achieve a position of de jure government, displacing a former government without having effective administrative control over all of the country, and it accordingly rejected the interim government’s application. The Hobhouse criteria were adopted by Cresswell J in Sierra Leone Telecommunications Co Ltd v Barclays Bank plc [1998] All ER 821.

²⁷⁴ Warbrick, ‘British Policy and the National Transitional Council of Libya’, 251.

²⁷⁵ Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2001] 1 Lloyd’s Rep 161; [2001] 1 All ER (Comm) 557 at para 358.

²⁷⁶ British Arab Commercial Bank Plc v The National Transitional Council of the State of Libya [2011] EWHC 2274 (Comm), para 25: ‘As Lord Atkin put it in a well known passage in The Arantzazu Mendi [1939] AC 256 (at page 264), “Our State cannot speak with two voices on such a matter, the judiciary saying one thing, the executive another. Our Sovereign has to decide whom he will recognise as a fellow sovereign in the family of States….”’ For a recent application of this principle, see R (on the application of HRH Sultan of Pahang) v Secretary of State for the Home Department [2011] EWCA Civ 616 at [14] and following, per Maurice Kay LJ, and [30], per Moore-Bick LJ.

²⁷⁷ At para 34.

²⁷⁸ On 31 August 2011 the Royal Air Force delivered 289 million dinars (c £140m) to the Central Bank of Libya in Benghazi.

²⁷⁹ Note Warbrick’s concluding comment that if the recognition decision becomes ‘an active tool of foreign policy, rather than a reactive one [to external events] Parliament might want to consider whether or not it should have a say’ (Warbrick, ‘British Policy and the National Transitional Council of Libya’, 263–4).

²⁸⁰ Leave is not necessary for service within the jurisdiction; for natural persons or even foreign incorporated companies who are agents of a foreign State service may be based on presence within the UK. In such cases the defendant will have to dispute the court’s jurisdiction and seek a declaration of no jurisdiction on the ground of State immunity.

²⁸¹ Formerly RSC Ord 11, r 1.

²⁸² Formerly Ord 11, r 7. The claimant in Mashate v Kaguta [2011] EWHC 3111 (QB) sought to avoid these requirements by issuing a claim form against the President of Uganda which simply used the President’s name and did not identify him as Head of State, giving his address as that of the High Commission of Uganda in London. Default judgment was obtained but was subsequently set aside by the High Court when the facts emerged.

²⁸³ Emperor of Austria v Day (1861) 2 Giff 628; USA v Wagner (1867) 2 Ch 582; Republic of Peru v Peruvian Guano Co (1887) 36 ChD 489. For a claim to register a foreign judgment, see AIC Ltd v Nigeria [2003] EWHC 1357 (QB) (13 June 2003); 129 ILR 871.

²⁸⁴ Dickinson, Selected Writings, 384, para 4.079. This can, of course, give rise to the complex question of what is a separate entity: see in the context of service within the requirements of s 12 SIA and CPR 6.44 (discussed below), see Wilhelm Finance Inc v Ente Administrador del Astillero Rio Santiago [2009] EWHC 1074 (Comm).

²⁸⁵ See Habib Bank Ltd v Central Bank of Sudan [2006] EWHC 1767 (Comm); [2007] 1 WLR 470, a claim against the national bank of Sudan, which did not appear in the proceedings. Field J outlined the drawbacks to obtaining judgment in a case against a State, observing that ‘It would have been open to [the claimant] in this situation to obtain default judgment pursuant to CPR Part 12 but the enforcement of such a judgment is notoriously difficult in international cases because such a judgment is not a determination on the merits. [The claimant] accordingly applied to Colman J … for direction with a view to there being a trial on the merits in the absence of CBS. The learned judge made the directions sought. He did so in accordance with his own decision in Berliner Bank v Karageorgis [1996] 1 Lloyd’s Rep 426 where he held that the court could order under its inherent jurisdiction that there be a trial on the merits where the defendant had failed to acknowledge service so that the plaintiff could seek to obtain a judgment that if given would be far more likely to be enforceable than a default judgment’ (para 8).

²⁸⁶ Canada Trust Co v Stolzenberg [1997] 1 WLR 1582.

²⁸⁷ For a recent example of a case in which this procedure was followed, see NML Capital v Republic of Argentina [2011] 2 AC 495, per Lord Phillips PSC at paras 3–6.

²⁸⁸ The court does, however, have the power to extend time for compliance with this requirement: see Sawyer v Atari Interactive Inc [2005] EWHC 2351 (Ch), paras 42–8.

²⁸⁹ The former procedure was very similar: under Ord 12, r 8, the plaintiff was required to issue a summons within the time limit for filing a defence, applying to the court for a declaration that it had no jurisdiction over the defendant. Order 12, r 7 ensured that any acknowledgment and application challenging the jurisdiction was not treated as a waiver of the State’s right to contest jurisdiction.

²⁹⁰ If a defendant files an acknowledgment of service and fails to make an application disputing the court’s jurisdiction within the period for filing a defence, he is to be treated as having accepted the court’s jurisdiction: CPR 11.5.

²⁹¹ However, the court has power to postpone the question of jurisdiction to a later stage in an appropriate case, in respect of some or all of the issues in the case: Kuwait Airways Corpn v Iraqi Airways Co [1995] 1 WLR 1147 (in that case, where the issue was that of justiciability).

²⁹² Bank of Credit and Commerce International SA v Al Kaylain [1999] ILPr 278.

²⁹³ Crescent Oil and Shipping Services Ltd v Importing UEE [1998] 1 WLR 919.

²⁹⁴ SIA, s 12(2) and (4) refer to ‘appearance’ on service and ‘default of appearance’. Prior to 1979 the method of appearing under Ord 12 to challenge the court’s jurisdiction was by entering a ‘conditional appearance’. The rules were changed in 1979 in order to clarify the steps to be taken by the defendant, but did not at first distinguish between the acknowledgment of service and the time limits for contesting the claim, nor between a plea challenging the jurisdiction and one raising a defence on the merits. Under RSC Ord 11, r 7 where the application challenging the jurisdiction failed and the court made no declaration, the acknowledgment of service ceased to be effective, and if the defendant wished to contest the merits it had to file a further acknowledgment of service before filing its defence: Elefantan Schuh Gmb H v Jacqmain (No. 150/80) ECR 1671; [1982] 3 CMLR 1, in particular the opinion of Sir Gordon Slynn at 6.

²⁹⁵ Practice of the Supreme Court (17th edn, 1999), B-26 at 1480. Cf Yugoslavia v Croatia [2000] ILR 59 where the French Cour de Cassation held that in the absence of an international treaty on the matter, the court was not required of its own motion to ascertain whether the State was entitled to immunity; immunity was not absolute and had to be claimed by the purported possessor.

²⁹⁶ Arab Republic of Egypt v Gamal Eldin and Anr [1996] 2 All ER 237, Employment Appeals Tribunal; Aziz v Republic of Yemen [2005] EWCA Civ 745; [2005] All ER (D) 188, para 51.

²⁹⁷ [2008] EWHC 531 (Comm); [2008] 2 All ER (Comm) 97.

²⁹⁸ See Chapter 19 ‘International Organizations and Special Regimes’.

²⁹⁹ See generally Dickinson, Selected Writings, 385–9, paras 4.080–82.

³⁰⁰ ABCI v Banque Franco-Tunisienne and Ors [2003] EWCA Civ 205; [2003] 2 Lloyd’s Rep 146.

³⁰¹ [1986] 3 All ER 284; 108 ILR 557.

³⁰² Arbitral awards made under the New York Convention are required to be enforced in the same manner as a judgment or order of the court; Arbitration Act 1996, ss 100–1.

³⁰³ Norsk Hydro v State Property of Ukraine [2002] EWHC 2120 (Comm), per Gross J at para 25: ‘The two month period is an acknowledgement of the reality that States do take time to react to legal proceedings. It is understandable that States should have such a period of time to respond to enforcement proceedings under ss. 100 and following of the 1996 Act; not untypically, an award will be made in one country but enforcement may be sought elsewhere, perhaps in a number of jurisdictions, where assets are or are thought to be located.’

³⁰⁴ AIC Ltd v Federal Government of Nigeria and Attorney-General of Federation of Nigeria [2003] EWHC 1357 (QB), 13 June 2003, 129 ILR 871, per Stanley Burnton J at para 23. See further, Crescent Oil and Shipping Services Ltd v Importing UEE [1998] 1 WLR 919; [1997] 3 All ER 428.

³⁰⁵ Formerly Ord 11, r 7. See also Practice Direction 6B, which supplements the requirements of CPR Part 6.

³⁰⁶ CPR 6.44(3), implementing a requirement in the ECSI, Art 16. No translation of the claim is required to be filed where English is an official language of the State where the claim form is to be served: CPR 6.45(5). Every request for service on a State must contain an undertaking to be responsible for and to pay all expenses thereby incurred by the FCO or foreign judicial authority: CPR 6.46.

³⁰⁷ SS Hellenic Lines v Moore, 345 F.2d 978; 41 ILR 239; Del Favero SpA v Republic of Cameroon, Mitchell J, 10 February 1999; personal service not permitted under the 1961 Vienna Convention on Diplomatic Relations, Art 22.

³⁰⁸ Introduced as an amendment to the Bill, HL, Hansard, vol 389, col 1519, 16 March 1978.

³⁰⁹ AN International Bank v Republic of Zambia, English High Ct, QBD (Comm), Moore-Bick J, 23 May 1997; 118 ILR 602.

³¹⁰ Whether a proclamation to the world by a State that it could be served in a particular way might constitute an ‘agreement’ within s 12(6) was considered by the trial judge, but not addressed by the Court of Appeal, in ABCI v Banque Franco-Tunisienne and Ors [2003] EWCA Civ 205.

³¹¹ Crescent Oil and Shipping Services Ltd v Importing UEE [1997] 1 WLR 919; [1997] 3 All ER 428 at 444. ‘[T]he expression, writ or other document in subsection (6) can only be read as being limited to originating process of the kind contemplated by subsection (1) and does not include a default judgment on a State’: AN International Bank, 118 ILR 615. CPR 6.47 also provides that proof of service of the claim form in accordance with the requirements of CPR Part 6 is required where a defendant on whom a claim form has been served out of the jurisdiction does not appear at a listed hearing, if the claimant wishes to obtain judgment against the defendant. Where a claim form has been served out of the jurisdiction, effective service will not be deemed without proof, unlike where service takes place outside the UK (see CPR 6.26).

³¹² Westminster City Council v Government of the Islamic Republic of Iran [1986] 3 All ER 284; 108 ILR 557. See also Habib Bank Ltd v Central Bank of Sudan [2006] EWHC 1767 (Comm); [2007] 1 WLR 470: in the absence of any indication that the Sudanese authorities had taken any steps to effect service of the claim on the defendant national bank, the English court ordered that the claimant could serve the claim form by leaving a copy at the bank’s offices in Khartoum with a senior employee: para 26.

³¹³ Kuwait Airlines v Iraqi Airways and Republic of Iraq (No 2), 3 July 1992, Evans J, aff’d [1995] 3 All ER 694 per Lord Goff at 703–4. In affirming the trial judge’s ruling that no service had been effected in accordance with s 12(1), Lord Goff of Chieveley approved the explanation given in Lewis: ‘9.6 It would have been possible to provide for service within the jurisdiction on the Embassy, on the analogy of a foreign company carrying on business within the jurisdiction. However, it was no doubt considered more diplomatic that the foreign sovereign should not, by reason of his mission’s presence here for the purpose of diplomatic intercourse between the two countries, be deemed to have a legal presence within the jurisdiction.’ Delivery to a security guard accompanying a visiting official is not service: (2003) 97 AJIL 182.

³¹⁴ Formerly Ord 11, r 1.

³¹⁵ Civil Procedure Rules, Pt 11, discussed above. In NML Capital v Republic of Argentina [2011] 2 AC 495, where the claimant had obtained permission ex parte to serve out of the jurisdiction and Argentina then disputed the court’s jurisdiction under CPR 11, the Supreme Court held that the claimant was entitled, at the hearing of Argentina’s claim under CPR 11, to rely on points which they had not raised in their ex parte application (reversing the former rule in Parker v Schuller (1901) 17 TLR 299). Lord Phillips PSC stated that ‘It is, of course, highly desirable that care should be taken before serving process on a person who is not within the jurisdiction. But if this is done on a false basis in circumstances where there is a valid basis for subjecting him to the jurisdiction, it is not obvious why it should be mandatory for the claimant to be required to start all over again rather than that the court should have a discretion as to the order that will best serve the overriding objective’ (para 75). It was important that the claimant had not misled the court as to the facts, and did not seek to advance additional facts or to bring the claim on a different legal basis.

³¹⁶ See Seaconsar Far East Ltd v Bank Markazi Jomhouri Islam Iran [1994] 1 AC 438; ABCI v Banque Franco-Tunisienne [2003] EWCA Civ 205; [2003] 2 Lloyd’s Rep 146; Dicey, Morris, and Collins, The Conflict of Laws (14th edn, 2006), Rule 24. As to requirement (c), see generally Spiliada Maritime Corpn v Cansulex Ltd [1987] AC 460.

³¹⁷ Kuwait Airways Corpn v Iraqi Airways Co (No 2) [1995] 1 Lloyd’s Rep 25; although the seeking of a stay on the ground of forum non conveniens will usually be construed as taking a step in the proceedings. In this case the Court of Appeal held there to be no submission, construing IAC’s reference to the UN Compensation procedures as not to suggest a more convenient municipal forum but to challenge the court’s jurisdiction by reason of the dispute being of an international character.

³¹⁸ The claimant owes a duty, when making his ‘without notice’ application, to make full and frank disclosure in his written evidence of all material facts (including facts which are unhelpful to him), and if a material fact is omitted at the ‘without notice’ stage, that of itself can justify the court discharging any order it makes if the defendant subsequently challenges that order: The Hagen [1908] P 189 at 20; MRG (Japan) Ltd v Engelhard Metals Japan Ltd [2003] EWHC 3418; [2004] 1 Lloyd’s Rep 731.

³¹⁹ JH Rayner (Mincing Lane) Ltd v Dept of Trade and Industry [1987] BCLC 667, Staughton J; 81 ILR 64. JH Rayner (Mincing Lane) Ltd v Dept of Trade and Industry [1989] 1 Ch 73 at 194; sub nom Maclaine Watson v Dept of Trade and Industry [1988] 3 All ER 257, CA at 314, per Ralph Gibson LJ at 358.

³²⁰ [1978] 1 QB 500; [1978] 1 All ER 1169 at 1198–200.

³²¹ [1988] 3 All ER, per Kerr LJ, at 314. In Grovit v De Nederlandsche Bank NV [2005] EWHC 2994 (QB); [2006] 1 WLR 3323, Tugendhat J refused to accept as a good arguable case the applicant’s allegation of malice in a libel case because ‘such allegations are very difficult to prove … if the court is simply to assume the truth of such allegations (and that they take the case outside the scope of the exercise of public powers), then that assumption may prove false within a very short time of the court having held that there is no state immunity. But by that time it would be too late to rectify the injustice’: para 57.

³²² Al-Adsani v Goverment of Kuwait and Ors, 100 ILR 465, CA, 21 January 1994, Butler Sloss, Evans, and Rose LJJ.

³²³ Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran [1994] 1 AC 438.

³²⁴ See eg Habib Bank Ltd v Central Bank of Sudan [2006] EWHC 1767 (Comm); [2007] 1 WLR 470, paras 42–5 (applying CPR 20, the predecessor to PD 6B).

³²⁵ Banca Carige SpA Cassa di Risparmio Genova e Imperia v Banco National [2001] 3 All ER 923 at 937; [2001] Lloyd’s Rep Bank 203.

³²⁶ See text under Jurisdictional link with the UK above.

³²⁷ Al-Adsani v Government of Kuwait and Ors (1994) CA; 100 ILR 465 at 469. In those cases in which the identification of damage to the claimant’s mental health is possible, the threshold requirements of 6PD 3(9) will be met, provided that that damage occurred in England.

³²⁸ Queen’s Bench Guide (January 2007), r 12.9.