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State immunity

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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U.S. Supreme Court Rules on Retroactivity of New FSIA Cause of Action

On 18 May 2020, the U.S. Supreme Court (the Supreme Court) handed down its decision in Opati v. Republic of Sudan. It ruled that a new cause of action added in the Foreign Sovereign Immunities Act (the FSIA), which allowed plaintiffs to seek punitive damages from foreign governments who sponsor terrorist activities, could be applied retroactively.

The case at hand relates to the 1998 Al Qaeda bombings of the U.S. Embassies in Kenya and in Tanzania.

Following these terrorist attacks, several victims sued the Sudanese government in U.S. courts claiming damages, as Sudan had allegedly supported and protected Al Qaeda.

The plaintiffs relied on an exception to the FSIA’s general rule that foreign governments enjoy immunity and cannot, in principle, be brought before U.S. courts. According to that exception, the immunity enjoyed by foreign governments does not apply to acts of terrorism and to States that sponsored such terrorist activities. However, at the time, this exception did not allow plaintiffs to seek punitive damages.READ MORE

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CJEU’s Advocate General Issues Opinion on State Immunity and Summary Proceedings Involving International Organisations

On 2 April 2020, the Advocate General[1] to the Court of Justice of the European Union (CJEU), Henrik Saugmandsgaard Øe (AG Saugmandsgaard Øe), handed down an Opinion in a case which raised very interesting issues relating to the interaction and application of Regulation (EU) No. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels Ibis Regulation) in summary proceedings involving international organisations. The case also raised interesting issues relating to the interplay between the Brussels Ibis Regulation and the immunity enjoyed by such international organisations.READ MORE

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Equivalence and Translation: Further thoughts on IO Immunities in Jam v. IFC

At the end of February, the Supreme Court of the United States issued a landmark judgment on the immunity of international organizations in Jam v. International Finance Corporation, 58 U.S. (2019). The case concerned the meaning of the 1945 International Organizations Immunities Act (IOIA), which affords international organizations “the same immunity from suit […] as is enjoyed by foreign governments[1]. Writing for a 7-1 majority, Chief Justice Roberts found that the IOIA incorporates a dynamic immunities regime, equivalent to whatever immunities US law affords to foreign states. The immunities of international organizations are keyed to sovereign immunity. The former evolve to meet the latter. Thus, as the US law of sovereign immunity has shifted from an absolute to a restrictive paradigm with the enactment of the 1952 Foreign Sovereign Immunities Act (FSIA), so too does the IOIA today incorporate merely restrictive immunity for international organizations.READ MORE

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Commisimpex Saga – 2018 Developments in France on State Immunity from Execution

Before 2018 comes to an end, I wanted to report on the developments on State immunity from execution (and more particularly on the Commisimpex saga) that took place in France this year.

The Commisimpex saga relates to a dispute between Société Commissions Import Export (Commisimpex) and the Republic of Congo (Congo) regarding unpaid debts due by Congo to Commisimpex.

After having obtained two ICC awards in its favour in 2000 and 2013, Commisimpex sought to enforce them against Congo in France.

In a notable case, it sought to attach banks accounts held by the Congolese embassy in Paris as well as by the Congolese delegation to UNESCO. In addition to the arbitral awards, Commisimpex relied on a waiver granted by Congo in the 1990s which entitled Commisimpex to attach diplomatic assets.READ MORE

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Recent Developments in Investment Disputes: ICSID, The Energy Charter Treaty, Solar Industry and FSIA

Arbitration claims for breaches of the Energy Charter Treaty have emerged in the last couple of years, as certain countries have tried to reduce or place restrictions on financially favorable regulatory measures aimed at promoting renewable energy.

Two of those arbitration cases have recently come under the spotlight and I found that it would be interesting to provide you with a general description of those two cases.READ MORE

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