¹ See generally Crawford, ‘Execution of Judgments and Foreign Sovereign Immunity’ (1981) 75 AJIL 820; Brandon, ‘Immunity from Attachment and Execution’ (July 1982) IFLR 32. Bouchez, UK (Higgins), Federal Republic of Germany (Seidl-Hohenveldern), Belgium (Verhoeven), Yugoslavia (Varady), GDR (Enderlein), India (Agrawala), US (Metzger), Thailand (Sucharitkul), Switzerland (Lalive), USSR (Boguslavsky), Italy (Condorelli and Scoli), Japan (Hirobe), Netherlands (Voskuil), all in (1979) 10 NYIL 3–292.

² ILC Commentary to Art 18, para 1. Reinisch, ‘European Court Practice concerning State Immunity from Enforcement Measures’ (2006) 17 EJIL 803; Wiesinger, State Immunity from Enforcement Measures (2006).

³ Waibel, Sovereign Defaults before International Courts and Tribunals (2011), para 13.63. See also Wood, Principles of International Insolvency, para 25-001.

⁴ Hackworth, Digest of International Law, vol 5 (1927), 625 cited by Lord Collins in NML Capital v Argentina [2011] UKSC 31, 3 WLR 273 at 102.

⁵ Hershey (1907) 1 AJIL 26–7.

⁶ UN General Assembly document A/RES/S-6/3201 of 1 May 1974; Charter of Economic Rights and Duties of States: UN General Assembly document A/RES/29/3281 of 12 December 1974.

⁷ See Krueger, A New Approach to Debt Restructuring (2002) as regards the Sovereign Debt Rescheduling Mechanism (SDRM). Subsequent proposals relating to collective action clauses in restructuring as a means to overcome resort to legal enforcement by non-participating creditors or ‘vulture funds’ acquiring at discount restructured bonds.

⁸ ‘It is well, therefore, to acknowledge from the outset that whatever may be the theoretical relationship between jurisdictional immunity and immunity from execution, the sensitivities of foreign States are likely to be aroused if, following upon the denial of a claim to jurisdictional immunity, the courts of the State of the forum authorize the levying of forced execution against the property of the defendant State’: Sinclair, ‘Law of Sovereign Immunity: Recent Developments’ (1980) 167 R de C 113 at 219–20.

⁹ Established for the ‘settling controversies concerning debts that were guaranteed or owed by Lesser Developed Country (LDC) governments to creditor governments’.

¹⁰ See the five key principles of the Paris Club, <http://www.clubdeparisorg>; Waibel, paras 13.72–13.74. The procedure being that creditor countries reach consensus in private and present an Agreed Minute to the debtor outlining the terms of the relief to be granted. The debtor country has a right to be heard. Sovereign debt owed to private banks is restructured through the London Club which unites major bank lenders to the defaulting country in ad hoc negotiating committees and follows the basic key principles.

¹¹ Illustrated by persistent litigation, particularly in the New York district court, to restrict the enforcement at full value of unstructured bonds bought at great discount by NML (designated as a ‘vulture fund’) in order to preserve the restructuring, agreed by the majority of the holders of bonds, of the Argentine sovereign default.

¹² Reinisch, 824. See Ch 17 (personal injuries).

¹³ Romanian Government v Trutta, Italian Cour de Cassation, 14 February 1926, 3 ILR 176. Decree 13 May 1926; Condorelli and Scoli, ‘Measures of Execution Against the Property of Foreign States: The Law and Practice in Italy’ (1979) 10 NYIL 197 at 199. Soviet Republic (Immunity in Greece) case, Ct of Athens (1928), 4 ILR 172; Greek Law of 1938 No 1519, Greek rev IL (1950) 331; Prefecture of Voiotia v Federal Republic of Germany, Case No 11/2000, Areios Pagos (Hellenic Supreme Ct), 4 May 2000; 123 ILR 513, cited in Lechouritou v Dimosio, ECJ Case C-292/05 [2007] 2 All ER 57.

¹⁴ Socobelge v The Hellenic State, Tribunal civil de Bruxelles (1951), 15 ILR 3. It dismissed an argument based on the inability of the court to order enforcement against its own forum State since the forum State without compulsion made proper allocation in its national budget for commitments which, unlike the Greek debts, were clearly incurred for public purposes. It disposed of other arguments based on independence, comity, and reciprocity; execution was the necessary consequence of jurisdiction to which the foreign State consents by entering into a commercial transaction and placing funds within the forum State; discharge of a legal liability in no way disturbs good relations between States, and to permit the foreign State to avoid discharge would confer an advantage which the forum State itself did not enjoy with regard to its private law creditors.

¹⁵ NV Cabolent v National Iranian Oil Co (1968) Ct of Appeal, The Hague, 28 November 1968, 47 ILR 138, UN Legal Materials 344.

¹⁶ The Philippine Embassy case, 46 BverfGE, 342, 65 ILR 140, UN Legal Materials 297, 13 December 1977, at 395. Banamar-Capizzi v Embassy of Republic of Algeria, Italian Cour de Cassation, 4 May 1989, 87 ILR 56.

¹⁷ Abbott v Republic of South Africa, Spain Const Ct (2nd Chamber), 1 July 1992, 113 ILR 413, in respect of enforcement of an unsatisfied judgment for salary arrears due to a foreign State employee.

¹⁸ Condor and Filvem v National Shipping Co of Nigeria, 2–15 July 1992, 33 ILM 593, sub nom Condor and Filvem v Minister of Justice, Case No 329, 101 ILR 394: pre-judgment attachment on a vessel of the State-owned Nigerian shipping company for unpaid price of goods guaranteed by the central bank and the State of Nigeria.

¹⁹ Abbott v Republic of South Africa, Spain, Const Ct (2nd Chamber), 1 July 1992, 113 ILR 412 at 420.

²⁰ French Ct of Appeal, 7 June 1969, 52 ILR 310 at 315; Cour de Cassation, 2 November 1971, 65 ILR 54 at 56. See also Marseille Pret (1986) JDI 1987, 77 ILR 530.

²¹ Englander v Statri Banka Cscekoslovenska, French Cour de Cassation, 11 February 1969, 52 ILR 335.

²² Islamic Republic of Iran v Eurodif, Ct of Appeal, Paris, 21 April, 1982, 65 ILR 93; Cour de Cassation, 14 March 1984, 77 ILR 513; rev crit dr int pri (1984), 644, note Bischoff, JDI (1984), note Oppetit D (1984) 639, report Fabre, note Robert. Whilst the French courts were prepared to authorize attachment of a saisie conservatoire of assets of the Iran Republic deposited with French companies, they were not prepared to allow an application for a saisie arrêt of assets deposited with French companies which they were under an obligation to reimburse to Iran: Islamic Republic of Iran v Eurodif, Cour de Cassation, 20 March 1989, 28 June 1989, JDI 4 (1990) 1005, note Ouakrat, 89 ILR 37. See Synvet, ‘Quelques réflexions sur l’immunité d’execution de l’État étranger’ (1984) JDI 22; Pingel-Lenuzza, Les immunités des Etats en droit international (1997) 272.

²³ Islamic Republic of Iran v Eurodif, Ct of Appeal, Paris, 21 April 1982, 65 ILR 93; Cour de Cassation, 14 March 1984, 77 ILR 513; Condor and Filvem v National Shipping Co of Nigeria, 2–15 July 1992, Italian Const Ct, 33 KM 593; sub nom Condor and Filvem v Minister of Justice Italy, Case No 329, 101 ILR 394.

²⁴ Re Prejudgment Garnishment against National Iranian Oil Co (1984) 22 ILM 1279. The German Court resorted to some rather casuistic reasoning in explaining away the prohibition on pre-judgment execution contained in the US and UK legislation; the prohibition in the FSIA, s 1610(d) on pre-judgment attachment except by waiver was attributed in part to the US legislator’s intent to abolish exorbitant jurisdiction based on the mere presence of assets within the jurisdiction and also on political considerations to avoid disturbance of relations with other States.

²⁵ In the case of French execution, although not in Italian, the requirement that the property be connected with the subject-matter of the proceedings narrows the scope of the property subject to execution; the conservatory order allowed in Creighton v Qatar on the basis of the consent of the State to arbitration under ICC Rules was of this type (other orders of a more permanent enforcement nature may not be so allowed).

²⁶ As to the prohibition against the issue of injunctions, whether interlocutory, personal, or proprietary in relation to a foreign State, see SIA, s 13(1)(b), and legislative history Lords Hansard vol 389, col 1521, 16 March 1978.

²⁷ Kingdom of Greece v Julius Bar and Co, Swiss Federal Tribunal, 6 June 1956; ATF 82 (1956) 75, 23 ILR 195.

²⁸ Lalive and Bucher, ‘Jurisprudence suisse de droit international Privé’ (1981) 373 Annuaire Suisse D I 37. Dominicé, ‘Immunités de jurisdiction et d’éxecution des États et chefs d’État étrangers’ Fiches juridiques (1992), 934.

²⁹ République Arabe d’Egypte c/Cinetel, Tribunal fédéral suisse, 1979, 20 juillet 1979, (1981) ASDI 206, 65 ILR 425 at 430.

³⁰ Reinisch, ‘Recent Practice of European Courts with Regard to State Immunity from Enforcement Measures’ (2006) 17 EJIL 4, text at fn 36.

³¹ Swiss Federal Tribunal, 10 February 1960, 65 ILR 384; the contention that the State property had been in use for making payments for weapons purchases was rejected as exempting it from enforcement measures because the court found that this specific purpose no longer applied at the time of sequestration, 392.

³² Banque Bruxelles Lambert (Suisse) SA et huit consorts contre République du Paraguay, Tribunal fédéral, 20 août 1998, ATF 124 III 382 at 389.

³³ Socobel c/ l’Etat hellenique et la banque de Grèce, Tribunal civil de Bruxelles, 30 April 1951, (1951) Journal des Tribunaux 302, 18 ILR 3 at 5; Libyan Arab Socialist People′s Jamahiriya v Rossbeton SRL, Italian Cour de Cassation, Case No 2502, 25 May 1989, 87 ILR 63 at 67; Non-Resident Petitioner v Central Bank of Nigeria (1977) UN Legal Materials 290 at 292.

³⁴ Meyer-Fabre, ‘Enforcement of Arbitral Awards against Sovereign States: A New Milestone …’, Mealey’s International Arbitration Report 15 (September 2000).

³⁵ Creighton v Qatar France, Cour de Cassation, 1st ch, civ, 6 July 2000 JDI (2000), 1054, note Pingel commenting at 1058 ‘Il n’en reste pas moins qu’une différence entre le fait de reconnaitre le caractère obligatoire d’une sentence et le point de savoir les quels biens cette dernière pourra etre executée’; Leboulanger Rev Arb(2001)114, ICCA YB XXV (2000) 458. See also the subsequent decision of the Paris Court of Appeal, 12 December 2001, note Leboulanger Rev Arb (2003) 417; Meyer-Fabre ‘Enforcement of Arbitral Awards against Sovereign States: A New Milestone …’, Mealey’s International Arbitration Report 15 (September 2000).

³⁶ Derains and Schwarz, A Guide to the ICC Rules of Arbitration (2005), 320–1 ‘… in 1998 the word “recourse” was substituted for “appeal” in order to cover all the various forms of judicial action that may be initiated in different jurisdictions against an Award, whether for an appeal, remission, setting aside, or annulment. The extent to which this deemed waiver is recognized and given effect in different jurisdictions is, however, a matter to be determined in accordance with the applicable law. Thus, while article 28(6) should generally have the effect of preventing appeals against the Arbitral Tribunal’s findings of fact or law in jurisdictions where such appeals may still be permitted, there are many jurisdictions that will not give effect to a waiver of all recourse, eg in respect of possible violations of due process, international public policy, or the competence of the Arbitral Tribunal or that might not recognise the efficacy of a waiver incorporated by reference from the ICC Rules ‘(emphasis added).

³⁷ The French decision has not so far been followed in the English courts. Svenska Petroleum Exploration AB v Lithuania and Anor [2006] EWCA Civ 1529, [2007] 2 WLR 876, per Moore-Bick LJ at 913; 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, per Burton J at 49. Cf FG Hemispheres Associates LLC v Democratic Republic of Congo Hong Kong Ct of 1st instance Reyes J at para 112. It is true that under Art 28(6) (of the ICC Rules 1998 (which governed the two ICC arbitrations)) the DRC undertakes to carry out an award. But that is far from saying that the DRC waives its right to plead immunity from the jurisdiction in relation to an enforcement of the award. An undertaking to carry out something is not the same thing as surrendering immunity.

³⁸ The final 1991 Draft omitted this requirement of specific waiver, merely referring to the exceptions in the previous article.

³⁹ This last situation was omitted in the 1986 Draft; it confused immunity from jurisdiction of proceedings relating to such matters with immunity from execution.

⁴⁰ Article 21. Scope of the present part—The present part applies to the immunity of one State in respect of its property, or property in its possession or control or in which it has an interest, from judicial measures of constraint upon the use of such property, including attachment, arrest and execution, in connection with a proceeding before a court of another State. Article 22. State immunity from enforcement measures—A State is immune without its consent in respect of its property, or property in its possession or control or in which it has an interest, from judicial measures of constraint upon the use of such property, including attachment, arrest and execution, in connection with a proceeding before a court of another State, unless the property in question is specifically in use or intended for use by the State for commercial and non-governmental purposes and, being located in the State of the forum, has been allocated to a specific payment or has been specifically earmarked for payment of judgment or any other debts. YBILC (1986) II(2) thirty-eighth session, 5 May–11 July 1986, 7th report.

⁴¹ YBILC (1990) II, pt 1, Third Report of the Special Rapporteur Mr Motoo Ogiso, 5 at 18–22.

⁴² YBILC (1990) II, pt 2, 42, para 228.

⁴³ The UK representative put the position as follows: ‘In principle, where immunity from jurisdiction has been determined not to apply to a particular case, and where the State has lost the case on the merits, the successful claimant is entitled to some guarantee that the judgment will be satisfied, if necessary by enforcement. But enforcement only arises if the defendant State refuses to fulfil its obligation, which we would hope would seldom, if ever, be the case. Those who are anxious about enforcement should not exaggerate the magnitude of the problem. At the same time they should reflect—as should we all—that a legal regime which leads, in a properly regulated way, to the possibility of judgments against States, but shies away from the question of how to enforce them, simply opens the way to friction between States. Of course exceptions need to be made for property in governmental non-commercial use. We appreciate the need, which has been highlighted in our discussions, to define with sufficient clarity the immune categories of property in order to avoid the hardship to States which might result from measures of constraint being erroneously applied to property which should not be available.’ Statement of Ms J Barrett, UK representative in UNGA Sixth Committee, 10 November 1992 cited in (1992) 63 BYIL, UK MIL, 702 at 703.

⁴⁴ YBILC (1991) II, pt 2, 22.

⁴⁵ UNGA 57th Session, Report of Ad Hoc Committee on Jurisdictional Immunities of States and their Property, 4–15 February 2002, Supp No 22 (A/57/22), 2.

⁴⁶ Curiously there was no express provision in the 1986 Draft dealing with pre-judgment attachment. This seemed to be unintentional since there had been support for the position taken by the Special Rapporteur, who declared precautionary or pre-judgment attachment not to be permissible and to be discouraged. ‘There is no need to over-protect the creditors vis-à-vis the State debtor. Compulsion of whatever form cannot afford an ideal solution to any difference with a foreign State. The existence of a final judgment is enough ground in support of diplomatic negotiations.’ ILC Commentary to Art 21.

⁴⁷ SIA, s 13(2)(b) prohibits ‘any process for enforcement of a judgment or arbitration award’ against the property of a State and by mention of ‘a judgment may be construed as limited solely to post-judgement process’.

⁴⁸ Subsection (4) of SIA, s 13 omits ‘the giving of relief’. The effect of this difference is to permit pre-judgment attachment where the State has given prior written consent, but not where attachment is sought on the basis of the use or intended use of the property for commercial purposes under subs (4). A Mareva injunction, an interlocutory remedy which restrains a defendant from removing its assets out of the jurisdiction, may thus be permitted where written consent has been given, but not in respect of property in use or intended use for commercial purposes under the second exception. See Ch 7 (UK law).

⁴⁹ Forth Tugs v Wilmington Trust Co 1987 3 SLT 153, 107 ILR 641. See also Kaffraria Property Co (Pty) Ltd v Government of Zambia [1980] SA LR No 2: transport costs for a supply of fertilizer donated to Zambia were unpaid by Zambia and assets of the State present in the forum territory were ordered by the court to be attached on the basis that South Africa now accepted a restrictive doctrine and the contract for transport was a non-immune commercial act.

⁵⁰ Islamic Republic of Iran v Eurodif, Ct of Appeal, Paris, 21 April 1982, 65 ILR 93; Cour de Cassation, 14 March 1984, 77 ILR 513; Condor and Filvem v National Shipping Co of Nigeria, 2–15 July 1992, Italian Const Ct, 33 KM 593; sub nom Condor and Filvem v Minister of Justice Italy, Case No 329, 101 ILR 394: pre-judgment attachment allowed as the only method by which the creditor could protect the existing credit and preserve the guarantee given in its respect. The court rejected the additional requirement that the property must have a specific link with the subject-matter of the proceedings. The court declared that the decision on these issues was for the Court, not an executive decision for a Minister.

⁵¹ Cosnard, ‘Quelques observations sur les décisions de la Chambre des Lordes du 25 novembre 2998 et du 24 mars 1999 dans l’affaire Pinochet’ (1999–2000) RGDIP 309.

⁵² Cf USA v Nolan C-538/10 ECJ (2012) where an employment issue arose on decision of US military to close a base in the UK. The US waived its immunity in respect of the collective redundancy procedure with the employees: would the legally required payment of wages to compensate for failure to provide a 90-day period of consultation constitute adjudication and thus be covered by waiver, or enforcement, and hence requiring an additional waiver?

⁵³ Re International Tin Council [1987] 1 All ER 890, which illustrates that proceedings, particularly where the court undertakes administrative tasks, as with trusts and bankruptcy, and possibly in judicial review of subordinate legislation, may contain elements of both adjudicative and enforcement jurisdiction. The French courts’ construction of an express consent of a State to arbitration held under institutional rules as also constituting consent to enforcement against ‘State property in private use’ would also seem an example of inclusive comprehensive proceedings.

⁵⁴ Jurisdictional Immunities, para 130. For the different view of the UK Supreme Court in NML and a fuller discussion, see Ch 13 (Immunity from adjudication: the exception for commercial transactions) and Ch 7 (UK law, enforcement of foreign judgments).

⁵⁵ NML Capital Ltd et al v Republic of Argentina (2nd Cir) 12-150L, 26 October 2012, ILIB 3 November 2012.

⁵⁶ Fragata Libertad Case (Argentina v Ghana) ITLOS Order 15 December 2012, Case No 20.

⁵⁷ ETI Euro Telecom International NV v Republic of Bolivia and Anor [2008] EWCA Civ 880, [2009] 1 WLR 665.

⁵⁸ The New Zealand Wine Box case seems to have contradicted the general unanimity regarding the prohibition of measures of constraint against a foreign State when it ordered discovery of documents and the giving of oral evidence, but the court did not address the question of immunity from enforcement as distinct from immunity from adjudication, and the closeness of the auditing arrangements between the Cook Islands and the forum State, New Zealand, makes it difficult to classify the relation as one between independent foreign States: Controller and Auditor General v Sir Ronald Davidson [1996] NZLR 517 and 319; see also a US case which allowed an injunction requiring a State agency to extend a letter of credit in favour of a private trader in pre-judgement proceedings: Attwood Turnkey Drilling v Petroleum Brasileiro, 875 F.2d 1174 (5th Cir) held waiver of immunity in letter of credit and did not decide whether US FSIA, ss 1690 and 1619 applied to bar injunctions.

⁵⁹ Fusco v O’Dea, Ireland Supreme Ct (1994) 2 ILRM 389, 103 ILR 318 (discovery order not available against foreign State). FSIA, s 1606 bars an award of punitive damages.

⁶⁰ Koo Golden East Mongolia v Bank of Nova Scotia, Scotia Capital (Europe) Ltd, Mongol Bank (2007) CA (Civ Div) 19 December 2007.

⁶¹ WL Oltmans v The Republic of Surinam, Netherlands Sup Ct, 28 September 1990, (1992) NYBIL 442 at 447; Zaire v d’Hoop, Belgium, 9 March1995, 106 ILR 294. Audi (ed), Insolvabilité des Etats et dettes souveraines, LJDJ 2011, Intro générale, 20–1.

⁶² Australian Law Reform Commission, Report No 24, Foreign State Immunity (1984), para 137.

⁶³ The House Report 1487, ‘Under current international practice, punitive damages are usually not assessed against foreign States’.

⁶⁴ Jorgensen, ‘A Reappraisal of Punitive Damages in International Law’ (1997) 68 BYIL 247.

⁶⁵ Dickinson, Lindsay, and Loonam, State Immunity: Selected Materials (2004), 289–91 (hereafter Dickinson et al, Selected Materials).

⁶⁶ The ILA Buenos Aires Revised Draft Articles for a Convention on State Immunity 14–20 (1994), Art VI Extent of liability: ‘A. As to any claim with respect to which a foreign State is not entitled to any immunity under this Convention, the foreign State shall be liable as to the amount to the same extent as a private individual under like circumstances: but a foreign State shall not be liable for punitive damages. If, however, in any case where the jurisdiction of the forum State can be established under Art III F of this Convention, the applicable law provides, or has been construed to provide, for damages only punitive in nature, the foreign State shall be liable for actual or compensatory damages measured by the primary loss incurred by the persons for whose benefit the suit was brought. B. Judgments enforcing maritime liens against a foreign State may not exceed the value of the vessel or cargo, with value assessed as of the date notice as served’.

⁶⁷ For example, an order to close down a nuclear reactor located in a neighbouring State: Radiation Contamination Claim, Austrian Sup Ct, 14 April 1988, 86 ILR 571; Nuclear Power Plant case, Austria, Superior Provincial Ct, 2 March 1989, 86 ILR 579. For discussion of the effectiveness of an anti-suit injunction made against a State who had waived its immunity from execution, see Wilkes, ‘Enforcing Anti-suit Injuctions against Sovereign States’ (2004) 53 ICLQ 512.

⁶⁸ The Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), ICJ Reports 2002, para 70; Cassese (2002) 13 EJIL 853.

⁶⁹ The Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium), ICJ Reports 2002, para 71.

⁷⁰ Case concerning Certain Criminal Proceedings in France (Republic of the Congo/France), ICJ Provisional Measures Order, 17 June 2003.

⁷¹ On 26 September 2012, Equatorial Guinea sought to institute an application against France alleging French breach of international law by taking investigative measures against the President of Equatorial Guinea and the issues of an arrest warrant against his son, the Vice-President, and Minister of Agriculture and Forestry. The claim arises out of a French ‘ill-gotten gains’ investigation and alleged embezzlement of State funds; without France’s consent to the jurisdiction, the case, being based on forum proprogatum, will not be placed on the Court’s General List.

⁷² As pointed out in discussion, the lesser links of control or interest removed the immunity from being in the ownership of the State as an immune person to the asset or fund itself; control might enable the State as a minority shareholder to claim immunity from execution whilst interest as with cultural objects might permit a State to claim immunity over an object which was privately owned, eg where objects in private ownership were under the internal law of the foreign State registered as of special cultural or artistic value. Third parties might gain complete protection from execution simply because a foreign State had an interest, a concept distinct from ownership. Such an indirect interest was strongly supported by the Nigerian member, even to the extent of wishing it expressly to relate to the natural resources of the country, as necessary for developing countries to enable public supervision of private investment and construction schemes, YBILC (1990) II, pt 2, 42, para 223.

⁷³ AIG Capital Partners Inc and Anr v Kazakhstan [2005] EWHC 2239 (Comm), [2006] 1 All ER (Comm) 1 at para 45, noted O’Keefe (2005) 76 BYIL 593.

⁷⁴ In Iran v United States Case A-13, the Tribunal upheld Iran’s claim that the US had breached its obligation under the General Declaration, General Principle A ‘to ensure the mobility and free transfer of all Iranian assets within its jurisdiction’ by failing to transfer privately imposed liens (whether incurred before or after the Algiers Declaration), and relied in support on the US FSIA and its conferment, subject to exceptions in ss 1610 and 1611, on property of foreign States of immunity from execution of judgments in the US. Iran/US Claims Tribunal Reports, 28, 112. In their separate opinion the US arbitrators Holtzmann, Aldrich, and Allison disagreed with the Tribunals’ ruling (154 B) and they cautioned against the Tribunal making pronouncements on a complex statute which Courts in the US armed with arguments of counsel and full access to relevant precedents had not found an easy task. Finally they claimed ‘the FSIA established sovereign immunity from judicial process; it does not provide immunity from non-judicial assertions of property rights and cited Behring Intern’l Inc v Imperial Iranian Air Force Civ No 79 675 (DNJ.1983) in support.

⁷⁵ The object of the proceeding has some similarity to the US and French requirements. The FSIA phrase reads ‘in respect of execution against the property of the State itself’; the French formulation may approximate even closer to the UNCSI formulation covering both the subject-matter of the proceeding and the State entity as a party with the phrase ‘the very funds … allocated for the implementation …’ of the obligation ‘whose repudiation by the State entity gives rise to the application’ (as held by the French Cour de Cassation’s in Eurodif).

⁷⁶ Jurisdictional Immunities, at para 110 referring to Kingdom of Spain v Societé X, Switzerland Federal Tribunal, 30 April 1986, 2 ILR 38.

⁷⁷ For a contrary view that the second exception makes available by specific earmarking property intended for public use, see Kessedjian and Schreuer, ‘Le Projet d’Articles de CDI sur les Immunités des États’ (1992) 96 RGDIP 299 at 332.

⁷⁸ Société Nationale Algérienne du Gaz v Société Pipeline Service, French Cour de Cassation, 1 Civ, 2 May 1990, Rev crit dr int pri (1991) 140, note by Bourel.

⁷⁹ See below in Eurodif.

⁸⁰ Société Sonatrach v Migeon, French Cour de Cassation, 1 October 1985, rev crit (1986) 526, (1987) 26 ILM 998, 77 ILR 525. The English law supports this ruling by making a firm distinction between the State and its organs and separate entities of the State which are not departments of the State and have the capacity to sue and be sued. These separate entities are equated to private parties; their activities are not immune and property owned by them is subject to ordinary measures of execution. Only in the case of such a separate entity performing an act in exercise of sovereign authority for which the State itself could claim immunity may it invoke immunity from jurisdiction (SIA, s 14(2)) and in consequence immunity from execution. The UK Act even encourages State agencies, when acting in the exercise of sovereign authority, to obtain adjudication of their disputes by the local court. It expressly provides that in such a case, where the State agency acts in exercise of sovereign authority and waives its right to invoke immunity, it shall enjoy the same protection from execution as is enjoyed by the State.

⁸¹ See Part II Ch 9.

⁸² See ILC Commentary, art 18(6).

⁸³ Russian Federation v Pied Rich Netherlands, Supreme Court 28 May 1993 (1994) 41 NILR 116.

⁸⁴ Flota Maritime Browning de Cuba SA v SS Canadian Conqueror and the Republic of Cuba (1962) DLR 598, 42 ILR 125. Richie J in the Canadian Supreme Court ruled that ‘ships which are at the disposal of a foreign State and are being supervised for the account of a department of government of that State are to be regarded as “public ships of a sovereign State” at least until such time as some decision is made by the sovereign State as to the use to which they are to be put’. The Australian FSIA 1985, s 32(3)(b) specifically provides that ‘property that is apparently vacant or apparently not in use shall be taken to be being used for commercial purposes unless the court is satisfied that it has been set aside otherwise than for commercial purposes’.

⁸⁵ The Akademik Fyodoro v South Africa, Supreme Court 19 April 1996, 145 ILR 459.

⁸⁶ NML Capital Ltd v Argentina and Banco Central de la Republica Argentina, 473 F.3d 463 (2nd Cir, 2007).

⁸⁷ Islamic Republic of Iran v Eurodif, Cour de Cassation 14 March 1984, submissions made to the Court by Advocate General Gulphe, JDO (1984) 598, UN Legal Materials (1984) 1062, 77 ILR 513 at 520–1. For the facts of the case see text under Nexus below.

⁸⁸ NV Cabolent v National Iranian Oil Co (1968), Ct of Appeal, The Hague, (1984) 47 ILR 138, UN Legal Materials 344; In re Prejudgment Garnishment against National Iranian Oil Co (1984) 22 ILM 1279.

⁸⁹ United Arab Republic v Mrs X, Swiss Federal Tribunal, 10 February 1960, 65 ILR 384. Griessen, Swiss Federal Tribunal, 23 December 1982, 82 ILR 5, where the Tribunal upheld an order requesting further particulars from a consular officer, where funds were deposited into his personal account by the Republic of Chad both for his own personal use and for consular expenses.

⁹⁰ Kessedjian and Schreuer, ‘Le Projet d’Articles de CDI sur les Immunités des États’ (1992) 96 RGDIP 299 at 329.