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Act of State doctrine

July 24, 2020 In Act of State doctrine, State immunity By Quentin Decleve

CJEU Rules on Interplay between State Immunity and Brussels I Regulation

On 7 May 2020, the Court of Justice of the European Union (the CJEU) issued its judgment in LG and others v. Rina SPA and another (Case C-641/18) in which it recalled that the customary international law principle of immunity from jurisdiction did not preclude the application of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels I Regulation)[1] if the defendant, who invokes that principle, does not exercise sovereign public powers.

The case relates to the sinking, in February 2006, of a passenger’s ship (under the flag of the Republic of Panama) in the Red Sea. Following that event, the victims of the sinking brought an action for damages, before an Italian court, against the Italian companies that carried out the ship classification and certification operations on behalf of the Republic of Panama. The victims essentially alleged that the sinking of the ship had been caused by these operations.

The Italian companies, however, asserted that the Italian courts lacked jurisdiction to rule on the matter since the classification and certification operations which they conducted on behalf of Panama were a manifestation of the sovereign powers of that State.READ MORE

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July 12, 2017 In Act of State doctrine, State immunity By Quentin Decleve

Hong Kong Court Sets High Standard for Crown Immunity Exception

On 8 June 2017, the Hong Kong Court of First Instance (the Court) ruled in TNB Fuel Services Sdn Bhd v. China National Coal Group Corporation that a Chinese state-owned enterprise was not entitled to rely on the doctrine of Crown immunity in proceedings relating to the enforcement of an arbitral award unless this company could demonstrate that it bears almost no independence and acts fully under the control of the Crown.READ MORE

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February 24, 2017 In Act of State doctrine, Jurisdictional issues, State immunity By Quentin Decleve

U.K. Supreme Court Rules on State Immunity and (Crown) Act of State Doctrines

On 17 January 2017, the U.K. Supreme Court (the Supreme Court) handed down three exceptionally significant decisions on allegedly tortious acts done by British Armed Forces in the context of overseas military operations or by government officials alleged to have been complicit in the wrongful acts done by foreign States. Each of the three decisions dealt with important questions of law such as State immunity, the “Foreign Act of State” doctrine, the “Crown Act of State” doctrine as well as the compatibility of overseas detentions with Article 5 of the European Convention of Human Rights (ECHR).

The three decisions at issue are: (i) Rahmatullah (No 2) e.a. v. Ministry of Defence; (ii) Al-Waheed and Serdar Mohammed v. Ministry of Defence; and (iii) Belhaj e.a. v. Straw e.a.READ MORE

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November 27, 2016 In Act of State doctrine, Jurisdictional issues, State immunity By Quentin Decleve

U.S. Supreme Court Expected to Rule on FSIA Pleading Standards and Expropriation Exception

On 2 November 2016, the U.S. Supreme Court (the Supreme Court) heard the oral arguments in a case where it was asked to clarify the pleading standards and the “expropriation” exception of the U.S. Foreign Sovereign Immunity Act of 1976 (FSIA).

The case arose in the context of a dispute between Helmerich & Payne International (HMI) – an American company – and Helmerich & Payne de Venezuela (HMV) – a subsidiary of HMI incorporated under the laws of Venezuela – on one hand, and the Venezuelan government and the national petroleum company PDVSA, on the other hand.READ MORE

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