Posts Tagged Sovereign immunity
Strategic Technologies v Taiwan MOD (formally Procurement Bureau of the Republic of China Ministry of National Defence). High Court sets aside earlier integration of ex-EU judgment into Brussels Ia.
In Strategic Technologies v Procurement Bureau of the Republic of China Ministry of National Defence  EWHC 362 (QB), Carr J i.a. set aside a November 2016 order by Supperstone J granting a certificate under Article 53 Brussels Ia.
Justice Carr adopts the routine approach of former English case-law calling the Brussels regime the ‘Judgments Regulation’. The certificate was issued in relation to a default judgment issued in 2009 by Claimant, Strategic Technologies against Defendant, the Ministry of National Defence (“the MND”) of the Republic of China (“ROC”), also and better known as Taiwan.
Carr J is right when at 134 ff she rejects the route taken by claimants (and adopted by Supperstone J) that the principle in CJEU C-192/92 Owens Bank v Bracco (that the Brussels Convention does not apply to proceedings for the enforcement of judgments given in civil and commercial matters in non-contracting states) has no application where, as here, the judgment of a non-contracting state (ie Cayman) has become a judgment of a Member State (ie the United Kingdom).
She refers to the clear language in formerly A25 Brussels Convention, now Article 2 Brussels Ia, that for a ruling to be a judgment it must be given by a court or a tribunal of a Member State. Adoption of a judgment by another State is not covered. She notes the CJEU referred to this definition in its Owens Bank v Bracco ruling. She also notes that the St. Vincent judgment in Owens v Bracco had in fact also been registered in England by the time that the House of Lords referred the matter to the CJEU.
Other issues in the judgment are less relevant to the blog. Do note that Taiwan does not call upon sovereign immunity: at 3: ‘The MND is an arm of the government of the ROC. Although it is by its own law a state, the ROC has an unusual status in international, and English, law: although it has all the generally recognised characteristics of statehood, and is often treated as a country, it is not recognised as a state by the United Kingdom and there are no formal diplomatic relations between the two. For the purpose of these proceedings only, and without making any wider concession, the MND does not rely on the State Immunity Act 1978.’ Clearly this case was not considered by Taiwan to be a case to force the recognition issue.
Central Santa Lucia L.C. v. Meliá Hotels International S.A.: Spanish court obiter applying Article 24 Brussels Ia reflexively ex-EU (Cuba).
Thank you Antonio Pastor for signalling Central Santa Lucia L.C. v. Meliá Hotels International S.A., litigation on which also more background here. The Spanish courts at MAllorca (appeal expected) have declined jurisdiction concerning confiscated property in Cuba after the end of suspension of Title III of the Libertad Act (the “Helms-Burton Act”, well known to trade and international lawyers alike) on the basis of sovereign immunity, as Antonio explains.
However as I understand Antonio’s summary (I fear I do not have Spanish to consult the judgment myself), the Court obiter also applied Article 24(1) Brussels Ia reflexively: if Brussels Ia grants exclusive jurisdiction to the courts of the Member State in which the property is situated in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, then EU Courts should decline jurisdiction if that real estate happens to be located ex-EU. Readers will remember the discussions on this issue in one or two earlier postings on this blog.
Interesting, to say the least.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 2, Heading 2.2.6.
Once in a while I post on State Immunity, one of my favourites sub-themes in same being waiver of immunity, whether by contractual provision or following submission.  EWHC 385 (Comm) certain underwriters at Lloyds et al v Syrian Arabic Republic et al is a good illustration of the latter. How does one serve a state which is evidently in times of political unrest? And has that State submitted to jurisdiction hence waived immunity?
Claimants’ claim in the United States District Court arose from the 1985 hijacking of EgyptAir flight 648 and the loss to which that gave rise. Adam Johnson and colleagues at Herbert Smith alerted me to the case and their review is excellent. Henshaw J held the former issue (service) very practically: DHL evidence of documents having been delivered to the relevant ministry suffices, even if acceptance of the documents is refused.
Assessment of submission was relevant for there is no Treaty between the US and the UK on recognition and enforcement – hence common law applies. In the absence of any Convention or other instrument for mutual recognition of judgments, a foreign judgment in personam can be recognised only if it was delivered by a court which had jurisdiction according to English private international law. That means that the defendant must either have (i) been present in the foreign jurisdiction when proceedings were commenced, (ii) claimed or counterclaimed in those proceedings, (iii) previously agreed to submit to the jurisdiction, or (iv) voluntarily have submitted himself to the overseas court’s jurisdiction (see Rubin and another v Eurofinance SA  1 AC 236 § 7).
In the present case (i)-(iii) do not apply, so Claimants must show that the Defendants submitted to the US court’s jurisdiction. Which Henshaw J held they had. Of particular note for this blog is that he (at 59) rejects much authority for CJEU precedent, particularly C-150/80 Elefanten Schuh, held under the Brussels Convention. Even if Elefanten Schuh were to apply, Henshaw J does not believe it would have led to a different outcome. At 66 follows an extensive list of arguments leading to a conclusion of submission, with particular emphasis on Notices of Appeal, each of which included a merit-based objection to the judgment appealed from but contained no assertion that the US courts lacked jurisdiction by reason of, or that the claims were barred by, sovereign immunity. The simple fact is that Syria at no stage made any such challenge, save very late in the process.
The judgment therefore is interesting firstly for its discussion of CJEU weight in residual conflict of laws; secondly for the Court’s view on submission and sovereign immunity – in my view very much the right one.
Appreciation of the title of this piece of course depends on how one as an individual likes Bauhaus, or not. A November 2017 European Parliament Study on looted works of art and cultural goods is something of a treasure trove for public and private international lawyers alike. The study looks at substantive law on the issue in the Member States (not the cup of tea for this blog) but kicks off with good overview of the challenges of sovereign immunity; applicable law (particularly with respect to choice of law; with inspiration being sought in the Belgian Private International Law Act, Article 90 (lex furti as a principle – the place from which the object was removed, but with corrections), and the issue of the application of foreign public international law by the courts.
Parliament is quite active on this issue. In May 2016 it had already published a study with more focus on the specific issue of art looted in times of conflict, and alternatives to court litigation but nevertheless with a short forray into conflict of laws (and reference to one or two interesting national cases).
Together the two studies are a good exercise for the conflicts mind.