Posts Tagged Sovereign immunity
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.
Update 17 November 2017 For discussions in Dutch case-law (including re contractual waiver) with respect to SHAPE, see here.
‘In 2007, Crescent Petroleum, the oldest privately-owned oil and gas company in the Middle East, agreed with Dana Gas, one the leading publicly-listed natural gas companies in the region, to create a joint venture called Pearl Petroleum (together, “the Consortium”). The Consortium entered into an agreement with the Kurdistan Regional Government (“KRG”) for the development of the Khor Mor and Chemchemal petrochemical fields in the Kurdistan region of Iraq. The KRG were and remain engaged in a political dispute with the Federal Government of Iraq, meaning that the Consortium were unable to export gas produced by the developed fields. As a result, the KRG became liable under its contract with the Consortium to pay a minimum guaranteed price, but it failed to make the required payments in full.’
Arbitration in London under LCIA rules ensued. The contract between the Consortium and the KRG was governed by English law and provided explicitly that “the KRG waives on its own behalf and that of [The Kurdistan Region of Iraq] any claim to immunity for itself and its assets”.
Cooke J held that whilst the UAE’s recognition of other states was a matter of foreign policy which the DIFC Courts could not rule on, construing the KRG’s waiver of immunity was a question of law and not public policy. In agreeing to arbitrate, a party agrees that the arbitration shall be effective in determining the rights of the parties (at 26). The waiver of any claim to immunity for itself and its assets must mean waiver of immunity from execution (at 28): any argument on that is blocked by issue estoppel (at 36).
Sovereign immunity therefore was not a trump which could be played at the time of enforcement: whatever immunity there might or might not have been had been contractually signed away.
An interesting and well argued judgment.
It is important at the outset to clarify terminology. A variety of statements, papers and position papers on JASTA, include the doctrine of ‘State immunity’ to either reject or support the Act. The Max Planck Encyclopedia of Public International Law, P-T Stoll (2011) defines State Immunity as:
“State immunity protects a State and its property from the jurisdiction of the courts of another State. It covers administrative, civil, and criminal proceedings (jurisdictional immunity), as well as enforcement measures (enforcement immunity). It reflects the sovereign equality of States as a main pillar of the contemporary international legal order. State immunity is closely related to but distinct from diplomatic immunity and the immunity of heads of States as well as the immunity of international organizations”.
This definition already shows the many levels of ‘immunity’ and the potential for confusion. The immunity at stake in JASTA is jurisdictional immunity. At the core of this immunity lies its procedural character. Immunity from jurisdiction does not mean that the subject enjoying it, is not bound by the law. States are evidently bound to apply international law. They and their agents and representatives are also bound to apply local law. Immunity from jurisdiction simply means that States cannot be pursued by the ordinary courts and tribunals of other States.
State immunity is seldom included in Treaties. It is considered to be part of customary international law. One or two Treaties have tried to codified it (e.g. the 1972 Basel Convention; and the United Nations Convention on Jurisdictional Immunities of States and Their Property, adopted on 2 December 2004) however these Treaties do not have many signatories. Anglo-Saxon jurisdictions such as the United States and the United Kingdom have a purpose-made Act that specifies how State immunity (and its limited exceptions) are to be applied on their soil. Civil law countries tend not to have such Act.
The existence of jurisdictional immunity of the State was confirmed by the International Court of Justice in its judgment of 3 February 2012 in Germany v Italy. Here, the ICJ noted (at 56)
Although there has been much debate regarding the origins of State immunity and the identification of the principles underlying that immunity in the past, the International Law Commission concluded in 1980 that the rule of State immunity had been “adopted as a general rule of customary international law solidly rooted in the current practice of States” (Yearbook of the International Law Commission, 1980, Vol. II (2), p. 147, para. 26).
The Court considers that the rule of State immunity occupies an important place in international law and international relations. It derives from the principle of sovereign equality of States, which, as Article 2, paragraph 1, of the Charter of the United Nations makes clear, is one of the fundamental principles of the international legal order. (at 57)
Exceptions to the immunity of the State represent a departure from the principle of sovereign equality.
‘Sovereign equality’ lies at the core of the principle of State immunity. In one of the pivotal early cases on the doctrine, The Schooner Exchange v McFaddon (1812), Justice Marshall of the United States Supreme Court emphasised the functional character of the principle. Other States sovereigns, their bodies and their agents need to be unencumbered in the pursuit of their mission. Just as the home nation expects its sovereign and its representatives to be treated in such way in other nations.
National courts in ordinary are not equal to the sovereign’s status and often diplomatic missions, which is exactly why those activities should not be hampered by law suits having to be entertained in local courts.
It may at first sight seem as if the doctrine of State immunity, like many century old concepts, surely ought not to stand in modern society. In 1951, Professor Sir Hersch Lauterpacht QC called State immunity an essentially insignificant and artificial problem (Lauterpacht, 1951). He supplemented his thoughts with a proposal to all but abolish the immunity of foreign States before domestic courts. In 1988, Professor (now emeritus) Christoph Schreuer published a volume on ‘recent developments’ in State immunity (Schreuer, 1988) in which he demonstrated that, defying Sir Hersch’s predictions, State immunity continued to exist. Now, nearly 30 years after that latter volume and a full 65 years following prof Lauterpacht’ s article, State immunity continues to exercise legislators and the judiciary worldwide, with increased attention to the citisens’ (including corporations) rights of access to justice.
The boundaries and implications of State immunity are more than ever challenged. States and State extensions (public private partnerships; autonomous public undertakings; privatised utilities with public interest duties; State-funded and /or State run corporations…) play an increasingly relevant role in today’s integrated global economies.
Privatisation, outsourcing, and the general trend in many jurisdictions to downsize the government apparatus, means that in recent years more than ever before, boundaries between ‘the State’ and ‘the private sector’ have become increasingly blurred. Yet in litigation, both at the jurisdictional and at the enforcement stage, the conceptual difference between State parties involved in litigation, and ‘commercial’, private parties, continues to exist.
The increasing presence of ‘the State’(in the broad sense) in general economic life has led to a need for renewed statutory and judiciary response to issues as diverse as vulture funds litigation involving sovereign debt, enforcement of arbitral proceedings against States (and similar entities), …
Italian and Belgian courts were among the first to distinguish, in the application of a principle of sovereign immunity, between States acting iure imperii, and acting iure gestionis. The difference being that in the latter, the State pursues commercial activities just like companies and individuals and, the theory goes, they should therefore not enjoy immunity from jurisdiction.
The limited exceptions to state immunity such as in the case of acta iure gestionis may suggest that State immunity faces un unstable path. In 2012, as noted, the International Court of Justice (ICJ) supported state immunity by ruling that Germany could benefit from the principle to avoid paying damages for war crimes and violation of ius cogens (Germany v. Italy). A year later, the European Court of Human Rights (ECtHR) was less favourable by stating that an absolute interpretation of the principle violates article 6 of the European Convention on Human Rights (ECHR) (Oleynikov v. Russia). However that latter case concerned the iure gestionis exception: The case concerned a Russian national who complained about the refusal by the Russian courts to examine his claim concerning the repayment of a loan to the Trade representation of North Korea. The Court held that the limitation of Mr Oleynikov’s right of access to court had pursued the legitimate aim of promoting good relations between States through the respect of national sovereignty. However, it concluded that the Russian courts had failed to examine whether the nature of the transaction underlying the claim was of a private law nature and to take into account the provisions of international law in favour of restrictive immunity.
The point about State immunity from jurisdiction is that it operates blindly. It can only fulfil its function if it is entirely blind to the merits of the underlying case. Except if the case might conceivably involve commercial activities of the State concerned, a court should simply not entertain the case at all. This is all the more relevant in cases which involve topical international relations issues, such as in particular the fight against international terrorism. By lifting that procedural bar, JASTA makes sovereign States, including those of the European Union, subject to the full weight of American civil procedure, including pre-trial discovery, trial by jury, attorneys fees etc. Exactly the kind of distraction which Justice Marshall would have called an unjustified and unhelpful complication in Sovereign States pursuing their business, as States.
A unilateral change to the theory and practice of sovereign immunity such as proposed by JASTA, in my view does not reflect international law on the issue. It would undermine the very foundation of international diplomacy and law. I believe European nations would be well advised to protest against it, and to protest loudly.
There is no such thing as ‘sovereign immunity-light’. From the moment the principle is eroded, even for what seems a good or justified cause, it is damaged beyond repair.