1 Victory Transport Inc v Comisaria General 336 F.2d 354 (2nd Cir 1964); 35 ILR 110.
2 Crawford ‘International Law and Foreign Sovereigns: Distinguishing Immune Transactions’ (1983) 54 BYIL 75 at 91.
3 Jurisdictional Immunities of the State (Germany v Italy, Greece Intervening) (hereafter Jurisdictional Immunities), para 57. Please see Index for references to this case throughout the book.
4 Jurisdictional Immunities, para 91. The three bases submitted by Italy for setting aside State immunity as a bar to national court proceedings—the personal injuries tort exception, the jus cogens nature of the international crimes committed, and the absence of any alternative effective remedy—were rejected by the ICJ.
5 But see McGregor, ‘State Immunity and Human Rights: Is There a Future after Germany v Italy?’ (2013) 11 JICJ 125 at130, who maintains that ‘a forum of last resort exception’ is also a procedural plea that ‘aligns with the spirit of the principle of exhaustion of local remedies by affording states the opportunity to resolve claims internally’.
6 Cheshire and North, Private International Law (13th edn, 1999); Sykes and Pryles, Australian Private International Law (1991), 256–67; Nygh’s Conflict of Laws (7th edn, 2002), 333–50.
7 Well illustrated by Dicey’s solution to the classification of damage in tort, which in the 14th edn cites with approval the High Court of Australia’s view that ‘matters affect the existence of, extent or enforceability of the rights or duties of parties to an action are matters that, on their face appear to be concerned with issues of substance’, and the qualification in 2010 in the 4th Cumulative Supplement referring to ‘the House of Lords decision in Harding v Wealands [2007] AC 1 where all matters of quantification of damages were regarded as procedural’. The superficial resemblance of actions in tort to the personal injuries tort immunity exception may have encouraged this borrowing, but should in fact warn of the dangers of attempting to identify what elements in the foreign State’s act relate to procedure and what to substance in applying the procedure/substance distinction.
8 Orakhelashvili, Case note (2012) 106 AJIL 609 at 613–14; also: ‘The distinction between sovereign and nonsovereign acts cannot be affected by the “procedural” nature of immunities. Before one gets to whether this procedural bar applies, one must identify the substantive nature of the act that brings the bar into effect’. See the discussion in Ch 2 ‘that States alone have provided the structures of authority needed to cope with the incessant claims of competing societal groups and to provide public justice essential to social order and responsibility’ and the way the application of the public/private distinction ‘rests “on political assumptions as to the proper sphere of State activity and of priorities in State policies” which cannot easily be contained in formal rules’.
9 Jurisdictional Immunities, para 57.
10 Jurisdictional Immunities, para 65.
11 Jurisdictional Immunities, para 60.
12 Jurisdictional Immunities, para 91.
13 Jurisdictional Immunities, para 60.
14 See Cane, An introduction to Administrative Law (1986), 4; Bamforth and Leyland (eds), Public Law in a Multi-layered Constitution (2003), Ch 10; Allison, A Continental Distinction in the Common Law: A Historical and Comparative Perspective in English Public Law (2000).
15 Allison, ‘Variations of View on English Legal Distinctions between Public and Private’ (2007) Camb LJ 698.
16 Jurisdictional Immunities, para 70.
17 Dralle v Republic of Czechoslovakia, Austrian Sup Ct, 10 May 1950, UN Legal Materials, 183; 17 ILR 155.
18 Empire of Iran case, German Federal Constitutional Court, 30 April 1963, BvG, vol 16, 27; UN Legal Materials, 282 at 289; 45 ILR 57 at 81.
19 Jurisdictional Immunities, para 60.
20 The 1991 Basel Resolution of the Institut de Droit International, The Contemporary Problems Concerning the Immunity of States in Relation to Questions of Jurisdiction and Enforcement. These criteria (which broadly reiterated but also enlarged the accepted categories of public and private acts) were also to be applied to determine what property of the State was subject to or exempt from execution; the immunity of transactions, property of State agencies, and political subdivisions of a State were also to be determined by the same criteria.
21 Brownlie, Principles of Public International Law (6th edn, 2003), 329–30, provides a structured version of this approach which was taken into account in drafting the Australian Act, Australian Law Reform Commission Report No 24, Foreign Sovereign Immunity (1984), and the 1999 ILC Working Group’s Report. See Ch 5 for an account of the discussions in the Institut de Droit International relating to Professor Brownlie’s proposals concerning such a balancing exercise.
22 See Ch 4 as regards the relevance of this category to jurisdictional competence.
23 Buttes Gas and Oil Co v Hammer [1992] AC 888; 64 ILR 331; Occidental Petroleum Corpn v Buttes Gas and Oil Co 331 F.Supp.92 (1971), aff’d 461 F.2d 1261 (9th Cir 1971), cert denied, 409 US 950.
24 Maclaine Watson v Dept of Trade and Industry [1988] 3 All ER 257, CA; [1989] 3 All ER 523, HL.
25 Arab Republic of Syria v Arab Republic of Egypt, Brazil Supreme Court, 14 April 1982; 91 ILR 288.
26 Local Authority of Vasteras v Republic of Iceland, Sup Ct of Sweden, 30 December 1999, reported by Said Mahmoudi (2001) 95 AJIL 192.
27 Hirsch v State of Israel and State of Germany 962 F.Supp.377 (SDNY 1997); 113 ILR 543, payment of reparation to Holocaust survivors pursuant to a treaty between two nations was governmental action.
28 Fickling v Commonwealth of Australia 755 F.Supp. 66 (EDNY 1991); 103 ILR 149 (caveat on behalf of divorced wife entered against corporation owned by husband). Whilst the maintenance of public registers is an exercise of sovereign authority, the determination of any infringement of rights arising from such registration is non-sovereign and an acknowledged exception to State immunity: UK SIA, s 7.
29 Oder-Neisse Property Expropriation case, FRG, Superior Provincial Ct of Munich, 12 August 1975; 65 ILR 127.
30 Campione v Peti-Nitrogenmuvek and Hungarian Republic, Italian Cour de Cassation, joint session, 14 November 1972; 65 ILR 287.
31 NV Exploitatie-Maatschappij Bengkalis v Bank of Indonesia Netherlands, Ct of Appeal, Amsterdam, 25 October 1963; 65 ILR 348.
32 Similarly, a Belgian court in 1989 accepted that a ‘Zairianization’ programme of nationalization of property in Zaire was unquestionably an act of sovereignty to which jurisdictional immunity applied, but the procedure adopted by an agency set up by the Zaire government to recover compensation on behalf of individuals affected by the expropriation constituted an ordinary commercial activity which, subject to sufficient jurisdictional connection, was not immune: Biocare v Gecamines and Republic of Zaire, Belgian Civil Ct of Brussels (2nd Chamber) 1989; 115 ILR 415.
33 NV Cabolent v National Iranian Oil Co (1968) Court of Appeal, The Hague 47 ILR 47 138; UN Legal Materials, 344.
34 International Assocn of Machinists and Aerospace Workers v OPEC I 477 F.Supp.553 (CDCAL 1979) aff’d on act of state grounds, 649 F.2d 1354 (9th Cir 1981); 66 ILR 413. Schreuer, State Immunity: Some Recent Developments (1988), 20.
35 Re Prejudgment Garnishment against National Iranian Oil Co, German Federal Constitutional Court, 12 April 1983; ILM 22 (1984) 1279.
36 Islamic Republic of Iran v Eurodif, Court of Appeal, Paris, 21 April 1982; 65 ILR 93; Cour de Cassation, 14 March 1984; 77 ILR 513.
37 Société Générale de surveillance Holding SA v Pakistan, 23 November 2000, Fed Trib RSDIE 4 (2001) 589, 129 ILR 393.
38 See Chs 16 and 17 ‘State immunity from enforcement’.
39 EF Vriesde v The State of the Netherlands and the National Investment Bank for Developing Countries, Netherlands Sup Ct, 3 May 1985; (1986) 17 NYIL 307.
40 Controller and Auditor General v Davison [1996] 2 NZLR 278 at 289; (1997) 36 ILM 721. See further, Ch 6.
41 USSR v Assn France Export, Cass Req, 19 February 1928, D (1929) 1 73, note Savatier; S 1930–1 49–51, note Niboyet; 5 ILR 18; De Fallois v Piatakoff, Cour de Cassation, 26 February 1937; 8 ILR 223. See Ushakov’s memorandum to the ILC, YBILC (1988) II, pt 1, 53.
42 French jurists dispute whether a foreign State’s failure expressly to include a ‘clause exorbitante’ in making a transaction may be construed as a waiver of immunity as to its nature as an exercise of public power. Bourel counters that waiver must be express, that it is not for the State unilaterally to determine the terms of a contract, and that the transaction should be governed by good faith; it may be that the foreign State is required to ‘educate’ the other party of his special position as to immunity: Cass civ I, 17 January, JDI (1973), 725, note Kahn; RCPIL (1974) 124, note Bourel. See also Spain v Société Anonyme de l’Hotel George, Cour de Cassation, civ. I, 17 January 1973, JDI (1973) 725, note Kahn, RCPIL (1974) 124, note Bourel; 65 ILR 61.
43 Sornarajah, ‘Problems in Applying the Restrictive Theory of State Immunity’ (1981) 31 ICLQ 668.
44 These proposals for removal of immunity for conduct of a business within, and for a single act performed within but connected to a business conducted outside the forum territory, were analagous to US federal law relating to jurisdictional connections for foreign corporations. The Harvard Research on ‘Competence of Courts in regard to Foreign States’ ((1932) 26 AJIL (Supp) 455) made plain that its proposals related solely to immunity; questions of jurisdiction still remained, after immunity was denied, to be determined according to the ordinary law of the forum State.
45 ECSI, Art 7 provides no immunity where the defendant State engages through an office, agency, or other establishment in the forum territory in the same manner as a private person in an industrial commercial or financial activity in respect of proceedings relating to such activity of that office, agency, or other establishment.
46 The justification for these exceptions may also be attributed to the existence of the substantive rights rendered subject to local jurisdiction being a creation of that forum law. Jurisdiction based on the State which is in charge of public registers is a recognized basis in the 1999 draft Hague Convention on Jurisdiction and Enforcement of Judgments.
47 Mellerio v Isabelle de Bourbon, ex-Reine d’Espagne, Paris, Ct of Appeal, 3 June 1872, JDI (1874) 32; Emperor of Austria v Le Maître, Paris, Ct of Appeal, 15 March 1872, JDI (1874) 32.
48 Morello v Governo Danese, Turin Cour de Cassation (1882), cited in ILC 3rd Report, YBIL (1982) II, pt 2, para 36; ex-King Farouk v Christian Dior; 24 ILR 228.
49 Lauterpacht, ‘The Problem of Jurisdictional Immunities of Foreign States’ (1951) 28 BYIL 220 at 234.
50 Gamen Humbert v Etat Russe, Paris, Ct of Appeal, 30 April 1912, (1919) RGDIP 493.
51 Guggengeim v State of Vietnam, French Cour de Cassation, 19 December 1961; (62) 66 RGDIP 654; 44 ILR 74.
52 The French Law of 16–24 August 1790 stated: ‘it shall be a criminal offence for judges in civil courts to concern themselves in any manner whatsoever with the operation of the administration, nor shall they call administrators to account before them in respect of the exercise of their official functions’.
53 Rolland, Preface to Droit Administratif 6 (1925), 36.
54 Vedel, Preface to Droit Administratif (1981). ‘Government authority’ would seem the closest English translation of this French term ‘puissance publique’. The correct translation into English of puissance publique has been much debated in both the ILC and the Working Group of the UNGA 6th (Legal) Committee. In including ‘political subdivisions’ and ‘agencies or instrumentalities’ of the State within the definition of the State, Art 2(1)(b)(iii) and (iv) introduced the condition that they be entitled to exercise ‘les prérogatives de puissance publique’ and translated this term as ‘the exercise of sovereign power’. The Commentary explained that ‘sovereign authority’ was employed as denoting international legal personality or the capacity to perform acts of sovereign authority in the name or on behalf of the State. Objection was, however, made that not all ‘prérogatives de la puissance publique’ are related to sovereign authority in foreign relations, and that the distinction was between public as opposed to private institutions (1991 Draft Articles on Jurisdictional Immunities, Commentary to Art 2, para 12 and n 13). The better translation, it was suggested, was that adopted in Part I of the ILC’s Draft Article on State Responsibility where ‘government’ or ‘governmental authority’ was used as the correct translation for ‘prérogatives de la puissance publique’. Accordingly, ‘governmental authority’ is the translation adopted by the UNGA Sixth Committee’s Working Group and approved by the ILC in its 1999 paper (Report of Working Group on Jurisdictional Immunities of States and their Property, ILC, 4 July 1999 A/CN.4/L.576, para 25). As to parallelism between provisions concerning the State for the purpose of State immunity and those on attribution of responsibility to the State of the conduct of entities exercising elements of the governmental authority, see ILC, 4 July 1999 A/CN.4/L.576, para 23.
55 Société des Combustibles et Carburants Nationaux, Tribunal des Conflits, 19 June 1952; Brown and Bell French Adminstrative Law (3rd edn, 1998), 88.
56 Spanish State v Société Anonyme de George V Hotel, Trib de Grande Instance, Paris, 14 March 1970; (1971) 75 RGDIP 561; reversed on appeal but upheld by Cour de Cassation, 65 ILR 61.
57 USA (Director of US Foreign Service) v Perignon, Paris, Ct of Appeal, 89 (1962) JDI 1017; 44 ILR 76; Sieur Mourcade v Arab Republic of Yemen, Trib de Grande Instance, Paris, 20 February 1991, 118 (1992) JDI 397; 113 ILR 462, a contract obtaining new premises for a diplomatic mission held immune.
58 English law has construed this exception to apply to a contract made by a person other than the State provided it gives rise to an obligation on the part of the State: Maclaine Watson v Dept of Trade and Industry [1988] 3 All ER 257 at 315, 336.
59 Berizzi Bros v SS Pesaro 271 US 562 (1925).
60 Empire of Iran case, German Federal Constitutional Court, 30 April 1963, BvG, vol 16, 27; UN Legal Materials, 282; 45 ILR 57.
61 Publications of the League of Nations, V, Legal, 1927, vol 9, no 11: Competence of the Courts in regard to Foreign States, reproduced in (1928) 22 AJIL (Sp Suppl) 117.
62 United Arab Republic v Mrs X, Swiss Fed Trib, 10 February 1960; 65 ILR 385.
63 Holubek v The Government of the United States, Austrian Sup Ct, 10 February 1961, UN Legal Materials, 203; 40 ILR 73.
64 Empire of Iran case, German Federal Constitutional Court, 30 April 1963, UN Legal Materials, 282; 45 ILR 57 at 80.
65 Republic of Argentina v Weltover 504 US 607 (1992); 100 ILR 509.
66 I Congreso del Partido [1983] 1 AC 244; [1981] 2 All ER 1062 at 1074, HL; 64 ILR 307.
67 Propend Finance Pty Ltd v Sing [1997] 111 ILR 611, CA, 2 May 1997.
68 Holland v Lampen-Wolfe [1998] 1 WLR 188, CA; [2000] 1 WLR 1573, HL; [2000] 3 All ER 833.
69 Banque Camerounaise de Développment v Société des Etablissement Rolber, Cour de Cassation, 1st ch, civ, 18 November 1986, RCDIP 76 (1987) 773.
70 French, Cour de Cassation (ch mixte) 20 June 2003; Rev crit DIP (2003) 647, note Muir Watt; JDI 4 (2003); (2003) 115 RGDIP 1007, note Pingel. The contract of employment contained clauses permitting dismissal by the Saudi general council without notice in the public interest. See also Kuwait v X, 24 January 1994, Swiss Federal Tribunal Rev Suisse D int Eur 5 (1995) 593 where the Swiss Federal Tribunal held the management of Kuwait’s natural resources by the Kuwait Investment Authority to be of a private law nature despite the funds being for the public purpose the benefit of future generations.
71 Republic of Argentina v Weltover 504 US 607 (1992); 100 ILR 509. One of the arguments used by a US appellate court in rejecting a claim that a kidnapping for ransom was a commercial activity was that the activity was to be one in which commercial actors in the market place would typically engage: Cicippio v Islamic Republic of Iran 30 F.3d 165 (Col Cir 1995); 107 ILR 296.
72 I Congreso del Partido [1983] 1 AC 244; [1981] 2 All ER 1064 at 1071; 64 ILR 307.
73 Arango v Guzman Travel Advisors Corporation 621 F.2d 1371 (5th Cir 1980); 63 ILR 467.
74 621 F.2d 1371 (5th Cir 1980); 63 ILR 467 at 1379.
75 [1983] 1 AC 244; [1981] 2 All ER 1062, HL; 64 ILR 307.
76 Kuwait Airways Corpn v Iraqi Airways Co [1995] 3 All ER 694, HL; 103 ILR 340.
77 Whether compensation is payable to a private party damaged by such change would seem a question of substantive law.
78 Senhor v International Bank for West Africa and the Republic of Senegal (1990) French Cour de Cassation; 113 ILR 461.
79 C Czarnikow Ltd v Centrala Handlu Zagranicznego ‘Rolimpex’ [1979] AC 351; [1978] 2 All ER 1043; I Congreso del Partido [1978] All ER 1169 per Goff J at 1194. Cf Cosnard, 136: ‘soit l’entité est une personne distincte, et elle ne peut alors prendre à l’immunité de l’Etat, mais pourra en revanche se fonder, le cas echéant, sur le caractère extérieur d’une intervention de son gouvernement pour se voir exonérer de sa responsabilité, soit l’entité est assimilée à l’Etat. Auquel cas elle peut invoquer l’immunité de l’Etat, mais ne pourra invoquer la force majeure au fond du litige’.
80 I Congreso del Partido [1978] 1 All ER 1171 at 1192. See the discussion in Higgins, ‘Recent Developments in the Law of Sovereign Immunity in the UK’ (1977) 71 AJIL 423 at 432–4.
81 Higgins, ‘Certain Unresolved Aspects of the Law of State Immunity’ (1989) 29 Netherlands Int Law Rev 265 at 268–72.
82 Henkin, ‘General Course on Public International Law’ (1989–V) 19 Rec de C 328; see generally 307–30.
83 As described by Lord Diplock, ‘the 1978 Act … does not adopt the straightforward dichotomy between acta jure imperii and acta jure gestionis that had become familiar doctrine in public international law, except that it comes close to doing so in s. 14(2) in relation to immunity conferred on “separate entities that are emanations of the State”. Instead, as respects foreign States themselves the Act starts by restating in statutory form in s. 1(1) the general principle of sovereign immunity, but makes the principle subject to wide-ranging exceptions for which the subsequent sections in Part I of the Act (ss. 2–17) provide’: Alcom Ltd v Republic of Colombia and Ors [1984] AC 580; [1984] 2 WLR 750; [1984] 2 All ER 6 at 10.
84 Australia and New Zealand Banking Group v Commonwealth of Australia; Amalgamated Metal Trading Ltd v Dept of Trade, QBD Commercial Ct, Evans J, 21 February 1989, transcript at 45.
85 Crawford, ‘International Law and Foreign Sovereigns: Distinguishing Immune Transactions’ (1983) 54 BYIL 75, at 90.
86 Schreuer, State Immunity: Some Recent Developments (1988), 41.