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State immunity

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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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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U.S. Supreme Court in May… Arbitration and International Litigation Not Far Away

Spring and the month of May seem to have inspired the U.S. Supreme Court (the Supreme Court) justices. In less than three weeks, the Supreme Court rendered three interesting opinions with respect to arbitration and international litigation:

  • Bolivarian Republic of Venezuela v. Helmerich & Payne Int’l Drilling Co. (on FSIA pleading standards);
  • Kindred Nursing Centers Partnership v. Clark (on whether state-law could require that a PoA expressly refer to arbitration agreements before an attorney-in-fact can bind his or her principal to an arbitration agreement);
  • Water Splash, Inc. v. Menon (on whether the Hague Service Convention allows service of process by postal channels).

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