¹ Early formulations of the modern rule in the Harvard Project in Art 8(a) and (b), as the 1891 Resolution of the Institut had done before, made plain that the bar of immunity is removed when the State gives ‘express consent … at the time of the hearing’ or ‘when, after notification of the proceeding, it takes any step in that proceeding before asserting its immunity’. The French procedural law treating the plea of immunity as one of ‘non recevoir’ rather than an ‘exception d’incompétence’ recognizes this distinction: Pingel-Lenuzza, Les Immunités des États en droit international (1997), 300 see text at fn 17.

² ECSI, Art 2: ‘A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if it has undertaken to submit to the jurisdiction of the court either: (a) by international agreement; (b) by an express term contained in a contract in writing; (c) by an express consent given after a dispute between the parties has arisen.’

³ An express waiver in a treaty binds the instrumentalities and agencies as well as the foreign State itself (House Report, 8 (ILM 1407)) whereas an express waiver in a contract, dependent on its terms, may be limited to the particular agency making it: Zernicek v Petroleos Mexicanos (Pemex) 614 F.Supp.407 (SD Texas 1985).

⁴ Mighell v Sultan of Johore [1894] 1 QB 149; Duff Development v Kelantan Government [1924] AC 797; 2 ILR 140; Kahan v Pakistan Federation [1951] 2 KB 1003.

⁵ Such a jurisdiction is Hong Kong where, on China’s resumption of sovereignty on 1 July 1997 over Hong Kong as a special administrative region (HKSAR) of the PRC, the SIA, extended by ordinance to Hong Kong, ceased to have effect, and there being no replacement by legislation having the PRC’s approval, the law of State immunity in Hong Kong relating to immunity from suit and from execution became only determinable by reference to the common law, FG Hemisphere Associates LLC v Democratic Republic of Congo and Ors Hong Kong Court of Final Appeal, 8 June 2011, HKCFA 42.

⁶ NML Capital Ltd v Republic of Argentina [2011] UKSC 31, paras125–6.

⁷ Kuwait Airways Corpn v Iraqi Airways Co (No 2) [1995] 1 Lloyd’s Rep 25 at 31, 37; 1 WLR 1147, CA; [1995] 3 All ER 694, HL; 103 ILR 340. See Ch 7 (taking a step in the proceedings).

⁸ 1969 Vienna Convention on Treaties, Arts 54, 56.1. For the grounds for termination of a unilateral declaration, see the ILC’s Draft on the Unilateral Acts of States, principle 8, ILC 58th Session (2006) A/CN 4.569, 9th Report on Unilateral Acts of States.

⁹ In the Fogarty v USA proceedings the United States waived immunity in respect of wrongful dismissal proceedings but claimed it later when the applicant brought a fresh claim for discrimination in a recruitment process.

¹⁰ Yendall v Commonwealth of Australia, Employment Appeals Tribunal, 11 October 1984, 107 ILR, 590.

¹¹ This rule seems slightly at odds with Arango v Guzman Travel Advisors Corporation; 621 F.2d 1371 (5th Cir 1980); 63 ILR 467, where a ‘change of mind’ on the part of the State led to an activity begun as a commercial transaction to become an exercise of sovereign authority by re-assumption by the State of a regulatory power over the other party. Surely if an express waiver may not be subsequently revoked, nor should a non-immune commercial transaction, voluntarily entered into, be subsequently revoked so as to afford immunity to the later stage of the transaction, or at least compensation should be payable by reason of the recourse to a governmental act.

¹² French courts treat the foreign State’s waiver (renonciation) as removing the bar of immunity, and do so not merely in respect of express submission before the court but also where the parties have agreed to waive immunity by a prior agreement. As Hamson suggests, this indicates that the French courts construe the foreign State’s immunity as one ratione personae which can be waived, rather than one arising from the tribunal’s incompetence which cannot be cured, Hamson, ‘Immunity of Foreign States, the Practice of the French Courts’ BYIL 27 (1950) 293 at 299.

¹³ Dellapenna, Suing Foreign Governments and their Corporations (2nd edn, 2003), 441–4. Cf the lengthy litigation which arose from the lack of a simple provision identifying the State representative authorized to waive immunity and to submit a State to the jurisdiction of another State’s courts (Donegal International Ltd v Zambia and Anr [2007] EWHC 197 (Comm)).

¹⁴ See also Art 4 of the ILC 2006 Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations.

¹⁵ Ahmed v Government of Saudi Arabia [1996] ICR 25; [1996] 2 All ER 248, CA; [1996] 104 ILR 629.

¹⁶ Arab Republic of Egypt v Gamal Eldin and Anr [1996] 2 All ER 237, Employment Appeals Tribunal; 104 ILR 673.

¹⁷ See generally, Dallah Real Estate and Tourism Holding Co v The Ministry of Religious Affairs, Government of Pakistan [2010] UKSC 46; [2011] 1 AC 763, per Lord Collins, paras 105–9.

¹⁸ See also Ch 9.

¹⁹ Dellapenna, Suing Foreign Governments and their Corporations (2nd edn, 2003), 440; Argentine Republic v Amerada Hess Shipping Corpn 488 US 428 (1989), 442–3; 81 ILR 658.

²⁰ Government of the Republic of Zimbabwe v Fick and Ors [2012] ZASCA 122, para 44 (SA (SC) 2012). The Protocol conferring jurisdiction on the SADC Tribunal which dispensed with any need for ratification by the legislature of a State Party, was agreed and signed by the head of State of Zimbabwe, para 39.

²¹ Ahmed v Government of Saudi Arabia [1996] ICR 25; [1996] 2 All ER 28, CA; 104 ILR 629. See Ch 7.

²² Church of Scientology case, German Federal Supreme Court, 26 September 1978, NJW (1979) 1101; UN Legal Materials 207, 65 ILR 193 which held that service of the writ through the Senior Master was not a waiver by the United Kingdom of the immunity of Scotland Yard on whom the writ was served.

²³ Tajik Aluminium Plant v Abdukadir Ganievich Ermatov and Ors [2006] EWHC 2374 (Comm) (28 July 2006).

²⁴ Although note the exception relating to universal civil jurisdiction for human rights violations in the draft 1999 Hague Convention which comes very close to such a position: see Ch 4.

²⁵ Deweer v Belgium (1980) 2 EHRR 439, para 49 and Bramelid v Sweden (1982) 29 DR 64 cited in Stretford v Football Association [2006] EWHC 497 (Ch) para 21.

²⁶ ENTICO v UNESCO and Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 531 (Comm). See further Ch 19 ‘International Organizations and Special Regimes’.

²⁷ Zappala, ‘The German Federal Prosecutor’s Decision Not to Prosecute a Former Uzbek Minister: Missed Opportunity or Prosecutorial Wisdom?’ (2006) 4 JICJ 602 at 617. See also SC Resolution 2048 (2012) where the Security Council imposed travel bans on five leaders of a coup in Guinea-Bissau with exemptions for ‘humanitarian, judicial or reconciliatory purposes’.

²⁸ Such an exception to immunity from civil jurisdiction for grave international crimes causing personal injuries committed in the forum State territory received strong support but was not finally adopted in the 2009 Naples Resolution of the Institut de Droit International.

²⁹ Local Authority of Västerås v Republic of Iceland, 30 December 1999, noted in Hafner, Kohen, and Breau (eds), State Practice regarding State Immunities (2006), 552 and Said Mahmoudi, casenote, (2001) 95 AJIL 192 at 195.

³⁰ Svenska Petroleum Exploration AB v Lithuania and Anr [2006] EWCA Civ 1529. The waiver was too imprecise and was to be read in the context of the agreement of the State to submit to ICC arbitration (para 128).

³¹ NML Capital v Argentina [2011] UKSC 31; 3 WLR 273, para 59 per Lord Phillips.

³² For general discussion of US law on this subject, see Dellapenna, Suing Foreign Governments and their Corporations, 244–8. As an example of a waiver in prior agreement to both a named jurisdiction and to all other jurisdictions, see Donegal International Ltd v Zambia and Anor [2007] EWHC 197 (Comm) where Clause 12 provided: ‘12.1 Submission: (a) The Republic of Zambia agrees that the courts of England have jurisdiction to settle any disputes in connection with this Agreement and the Debt and accordingly submits to the jurisdiction of the English courts. 12.3 Non-exclusivity: Nothing in this Clause 12 limits the right of Donegal to bring proceedings against the Republic of Zambia in connection with this Agreement or the Debt: (a) in any other court of competent jurisdiction; or (b) concurrently in more than one jurisdiction.’

³³ In Duff Development v Kelantan Government [1924] AC 797; 2 ILR 140, the English court ruled that the intention of the Kelantan government in agreeing to submit its dispute to arbitration and in its seeking the assistance of the English court in setting aside the award in no way demonstrated its willingness to submit to the enforcement of the award by the English court; the Lords’ decision, though now shown above as mistaken on the requirement of waiver in the face of the court, remains authoritative on the requirement of a separate waiver for enforcement

³⁴ The UK SIA requires express written consent to execution on any property of a foreign State: SIA, s 13(3). The US and Canadian statutes also require a separate waiver but allow it to be either express or implicit; the US Act, however, limits such waiver to property in commercial use in the US: FSIA, s 1610(a).

³⁵ 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.

³⁶ Sabah Shipyard (Pakistan) Ltd v Islamic Republic of Pakistan [2002] EWCA Civ 1643.

³⁷ Svenska Petroleum Exploration AB v Lithuania and Anr [2005] EWHC 2437 (Comm) (4 November 2005) 1529, confirming [2005] EWHC 2437 (Comm) Gloster J.

³⁸ Yugoslavia v SEEE, 6 July 1970, France, Trib de Grande Instance, 65 ILR 47 at 49; Court of Appeal, Paris, 21 April 1982, JDI (1983) 145. The order granting an exequatur for the award does not, however, constitute a measure of execution but merely a preliminary to that process declaring the validity of the award and as a necessary sequel to the award. The pronouncement of an exequatur does not, therefore, violate the immunity from execution of a foreign State.

³⁹ Islamic Republic of Iran v Eurodif, Ct of Appeal, Paris, 21 April, 1982; 65 ILR 93; Ct of Cassation, 14 March 1984; 77 ILR 513.

⁴⁰ Creighton Ltd v Government of Qatar, France, Ct of Cassation, 1st ch, civ, 6 July 2000 JDI (2000) 1054, note Pingel; commenting Leboulanger Rev Arb (2001) 114; ICCA YB XXV (2000) 458.

⁴¹ Orascom Telecom Holding SAE v Republic of Chad & Ors [2008] EWHC 1841 (Comm); [2008] 2 Lloyd’s Rep 396; [2009] 1 All ER (Comm) 315. After review of the authorities and an adjournment to receive Maitre Leboulanger’s opinion, Burton J stated at para 49, ‘I am reluctant to conclude that, without more, interpretation by the French and/or US courts of the effect of Article 28(6) (or the old 24(2)) in a situation where there is no statutory framework such as the 1978 Act, should be imported into this jurisdiction so as to expand the waiver of immunity beyond the commercial purposes exception in s 13(4): certainly without the full evidence of French and/or US law …’.

⁴² Gaillard, ‘Effectivité des sentences arbitrales: immunité d’execution des Etats et autonomie des personnes morales dependant d’eux’ in Pingel-Lanuzza (ed), Droit des Immunités et Exigences du process équitable (2004), 120. See further Ch 16 on enforcement.

⁴³ FSIA, s 1607. In an action brought by a foreign State or in which it intervenes in a US court, immunity will not be accorded to the foreign State with respect to any counterclaim:

(i) for which the State would not have enjoyed immunity had it been brought as a separate claim; or

(ii) arising out of the transaction or occurrence that is the subject-matter of the claim; or

(iii) to the extent that the counterclaim does not seek relief exceeding in amount or differing in kind that sought by the foreign State (s 1607).

⁴⁴ National City Bank v Republic of China 348 US 356 (1955).

⁴⁵ US Restatement (Third), Foreign relations, s 456, comment f.

⁴⁶ The presence of an arbitration clause in a charter of a vessel entered into by the State to transport surplus wheat to Spain was held by a US court relying on a French decision to similar effect to underline the intention of the parties to make their agreement subject to private law: Victory Transport Inc v Comisaria General 336 F.2d 354 (2nd Cir 1964); 35 ILR 110; Birch Shipping Corpn v Embassy of United Republic of Tanzania 507 F.Supp 313 (1990); 63 ILR 524; and see Ch 9 above on the US FSIA and waiver. The US Act allows waiver by implication (ss 1605(a)(1), 1610(a)–(c)).

⁴⁷ Ipitrade International Inc v Federal Republic of Nigeria 465 F.Supp.824 (DDC 1978); 63 ILR 196; cf Procureur de la République v Ipitrade, Paris, Trib de Grande Instance, 12 September 1978 JDI (1979), 857; Benvenuti & Bonfant v Government of Congo, French Ct of Appeal, 26 June 1981; 65 ILR 88. See generally, Schreuer, State Immunity: Some Recent Developments (1988), 79–80.

⁴⁸ Lliamco v Socialist People’s Republic of Libya, Svea Ct of Appeals, 18 June 1980; 62 ILR 225; Lliamco v Socialist People’s Libyan Arab Jamarhirya 482 F.Supp.1175 (DDC 1980); 62 ILR 220, vacated 684 F.2d 1032 (DD Cir 1981) after case settled; Procureur de la République v Lliamco, France Trib de Grande Instance, 5 March 1979, JDI (1979) 857; 65 ILR 78. For an account, see Craig, Park, and Paulsson, International Chamber of Commerce Arbitration (3rd edn, 2000), 671–4.

⁴⁹ French courts will make an order for exequatur, that is recognition of a foreign award as valid because an exequatur is treated as a stage in the adjudicative rather than the enforcement process.

⁵⁰ Islamic Republic of Iran v Eurodif, Ct of Appeal, Paris 21 April 1982; 65 ILR 93; Ct of Cassation, 14 March 1984; 77 ILR 513; I Pingel-Lenuzza, Les Immunitiés des Etats en Droit International (1997), 310–11.

⁵¹ Creighton Ltd v Government of Qatar, France, Ct of Cassation, 1st ch, civ, 6 July 2000 JDI (2000); note Pingel, JDI (2004) 1054.

⁵² Ipitrade International Sa v Nigeria 465 F.Supp.824 (DDC 1978); 63 ILR 196; LIAMCO v Libya 482 F.Supp.1175 (DDC 1980) 19 June 1980; 62 ILR 229. In S Davis International Inc v Republic of Yemen 218 F.3d 1292 (11th Cir 2000) the Court of Appeals held the exception to apply to proceedings in the US court against a State not a party to the NYC on the basis that a State agency which it controlled had consented to arbitration in a country party to the NYC.

⁵³ Cf a similar exception contained in the ECSI where the commentary states clearly that ‘proceedings concerned with the enforcement of arbitral awards are outside the scope of the convention and governed by domestic law and any international convention which may be applicable’. The requirements of writing, exclusion of arbitration agreements between States, and types of supervisory powers of the national court for which immunity is removed are also to be found in the ECSI’s exception in Art 12 which in conformity with the general scheme of the Brussels Convention on Jurisdiction and Judgments limits the differences to those arising out of ‘a civil or commercial matter’.

⁵⁴ Referred to by Fouchard, Gaillard, Goldman, Gaillard, and Savage (eds), International Commercial Arbitration (1999), 130, relying on a Circular of 1967.

⁵⁵ See Fox, ‘State Immunity in the New York Convention’ in Gaillard and di Pietro (eds), Enforcement of Arbitration Agreements and International Arbitration Awards: The New York Convention in Practice (2008).

⁵⁶ Spelt out in ECSI as ‘on the territory or according to the law of which the arbitration has taken or will take place’.

⁵⁷ See Chs 7 and 8.

⁵⁸ Australian FSIA, s 17(2) applies the commercial requirement (ie that the subject-matter of the reference must be non-immune) to the court’s power to recognize or enforce the award but not where it is exercising supervisory powers over the arbitral proceedings (s 17(1)).

⁵⁹ As to the status of an Understanding, see Ch 9 on the UN Convention on State Immunity.

⁶⁰ Svenska Petroleum Exploration AB v Lithuania and Anr [2006] 1 All ER 731, Gloster J.

⁶¹ FSIA, s 1605(A)(6) reads ‘(a) A foreign State shall not be immune from the jurisdiction of courts of the United States or of the States in any case … (6) in which the action is brought, either to enforce an agreement made by the foreign state with or for the benefit of a private party to submit to arbitration all or any differences which have arisen or which may arise between the parties with respect to a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration under the laws of the United States, or to confirm an award made pursuant to such an agreement to arbitrate’.

⁶² ICSID and bilateral claims settlement agreements such as the Iran/US Settlement Agreement, 14 January 1981, also come within this jurisdictional connection. The other three specified connections in FSIA, s 1604(a)(6) may be summarized as when ‘(A) the arbitration takes place or is intended to take place in the United States’; or ‘(C) the underlying claim, save for the agreement to arbitrate could have been brought in a US court under this section or s. 1607’; or ‘(D) paragraph (1) of this subsection is otherwise applicable’.

⁶³ Cargill International SA v M/T Pavel Dybenko 991 F.2d 1012 at 1018 (2nd Cir 1993), cited with approval in Creighton Ltd v Government of State of Qatar 181 F.3d 118 at 125 (DC Cir 1999). Despite US courts having consistently held that the grounds for non-recognition in Art V of the New York Convention are exclusive and may not be expanded by the courts, the 2nd Circuit has now confirmed that a district court must have either personal or quasi in rem jurisdiction to confirm a foreign arbitral award; the court characterized jurisdiction over the opposing party as a ‘fundamental requirement’ in enforcement proceedings. Frontera Resources Azerbaijan Corpn v State Oil Corpn of Azerbaijan 582 F.3d 393, 396–8 (2nd Cir 2009) at 397; Berger and Sun, ‘Personal Jurisdiction and the New York Convention’ (2010) 28 Int Litigation No 2. See also Thai-Lao Lignite (Thailand) Co et al v Government of the Lao People’s Democratic Republic 10 Civ 5256 (SDNY August 2011) where Laos could not claim immunity because the arbitration award was governed by the NYC. In that case the court also found personal jurisdiction pursuant to 28 USC Section 1330(b).

⁶⁴ Dickinson et al (eds), State Immunity: Selected Materials and Commentary (2004), §4.068, summarizes the position in the following way: ‘Two important amendments were made to the text of Clause 9 of the Bill which provides that where a State has agreed in writing to submit a dispute to arbitration in, or according to the law of the United Kingdom, the State is not immune. The Amendment removes the links with the United Kingdom, and by deleting the reference to the United Kingdom or its law, it will ensure that a State has no immunity in respect of enforcement proceedings for any arbitral award’.

⁶⁵ Svenska Petroleum Exploration AB v Lithuania and Anr [2007] 2 WLR 876, CA, confirming [2006] 1 All ER 731, Gloster J.

⁶⁶ Svenska Petroleum Exploration AB v Lithuania and Anr [2007] 2 WLR 876, CA; confirming [2006] 1 All ER 731, Gloster J. The lower court held s 9 of the Act to be in different terms from the European Convention on State Immunity 1972 or the US authorities and held that: ‘there is no linguistic or other basis for construing the language used in section 9 of the Act (particularly when viewed in the context of the execution provisions of section 13) as excluding enforcement proceedings’. In the course of the enactment of s 9 the operation of the exclusion of ‘proceedings for the enforcement of an award’ was omitted and, secondly, words limiting the operation of the exception to arbitrations ‘in or according to the laws of the United Kingdom’ were excluded, thereby permitting proceedings relating to the enforcement of a foreign arbitral award (including proceedings to register a foreign award for enforcement).

⁶⁷ The Australian Foreign Sovereign Immunities Act 1985, s 17(i) provides an exception to immunity for arbitration agreements to which a State is a party in respect of the exercise of the supervisory powers of a national court, including a request for a case stated, and with no requirement that the differences referred to arbitration relating to a commercial transaction; an additional subparagraph removes immunity of the State from proceedings concerning the recognition or enforcement of an arbitral award but only where the State would enjoy no immunity in respect of the underlying transaction referred to arbitration. Pakistan, Singapore, and South Africa legislation on State immunity includes an exception for arbitration agreements in identical wording to SIA, s 9. The Canada State Immunity Act 1985 contains no such exception.

⁶⁸ NML Capital Ltd v Republic of Argentina [2011] UKSC 31, Ct of Cassation Ier civ 28 September 2011 139 JDI (2012) 668, note Cuniberti.