NOTES

INTRODUCTION AND PART I

1 See Sucharitkul, Immunities of Foreign States before National Authorities, in Re­ceui! des cours, 1976-1, pp. 87-215 (following upon the same author's State Immunities and Trading Activities in International Law, London 1959); id., Immunities of Foreign States before National Authorities: Some Aspects of Progressive Development of Con­temporary International Law, in Estudios de derecho internacional: Homenaje al pro­fesor Miaja de la Muela, Madrid 1979; Dressler, L'immunite de juridiction et d'execution des Etats etrangers devant la juridiction nationale, these No. 639 de la Faculte de droit de J'Universite de Geneve, 1978; F. Przetacznik, Sovereign Immunity of Foreign States and International Commercial Arbitration, in 57 Revue de droit international (Geneve) 188-232 and 291-301 (1979); several country surveys by different writers have appeared in X Netherlands Yearbook of International Law (1979); I. Sinclair, The Law of Sover­eign Immunity: Recent Development, in 167 Recueil des Cours (1980-11), 113-284 (despite the sub-title, the bulk of these lectures is devoted to the historical evolution of the doctrine and its application over the years by the courts of various states).

2 Except for one or two judicial decisions immediately preceding the Act, the United Kingdom adhered consistently to the doctrine of absolute immunity. In the United States there has been a cautious move away from absolute immunity since the so-called "Tate letter" was published in 1952 (26 Dept. State Bull. 984). See Comment, Inter­national Law Sovereign Immunity. The First Decade of the Tate Letter Policy, 60 Mich. L. Rev. 1142 (1962). See also Isbrandtsen Tankers v. President of India, 446 F.2d 1198 (2d Cir. 1971); Weber, infra note 84 (Parts II and III) at 15-16.

3Cornelius van Bynkershoek, De Foro Legatorum, 1744, p. 36, c. 4. Cited by the U.S. Attorney in The Schooner Exchange v. M'Fadden and Others (1812).

4 Id. at 40-46. Cited by attorney for libelants in The Schooner Exchange. S Emerick de Vattel, Le droit des gens, 1758, Book 2, Ch. 14, paras. 213 and 216. 6 Sompong Sucharitkul, State Immunities and Trading Activities in International

Law, London 1959, p. 3 (hereinafter cited as SucharitkuI1959). 7 U.S. Supreme Court Reports, vol. VII at 287-297 (Edition of The Lawyers' Co-oper­

ative Publishing Co. 1882). 8 S.E. Morison, The Oxford History of the American People, 1965 at 378. 9 Sinclair has already noted, after a more cursory examination of the decision, that

"[w J hi Ie The Schooner Exchange v. M'Fadden may therefore mark the beginning of the development of the modern law of State immunity, Chief Justice Marshall's judgment is in no way inconsistent with the theory that immunity may extend only so far as to secure the protection of the "sovereign rights" exercisable by a foreign sovereign." Sir Ian Sinclair, The Law of Sovereign Immunity: Recent Developments, in 167 Recueil des cours (1980 II) at 122.

154

10 2 Dod. 451. 112 H.L.e. 1 ff. 1217 Q.B. 171 ff. 13L.R. 4A and E59 ff. 14(1879) 4 P.D. 129. IS (1980) 5 P.D. 197. 16Sucharitkul1959 at 59-60. 17 Sinclair supra note 9 at 126. 18Sucharitkul1959 at 59. 19 p. de Visscher and Verhoeven, infra note 39 (Parts II and III) at 38. 20 Pasicrisie 1857 II 348. 21 Pasicrisie 1877 II 307. 22 Pasicrisie 1879 II 175. 23 Pasicrisie 1889 III 62. 24Pasicrisie 1891 II 419. 25 Pasicrisie 1903 II 301-302. 26Pasicrisie 1927 III 129; Annual Digest, vol. 4 (1927-1928), Case No 112, pp. 177-

178. 27 Giuresprudenzia Italiana 1883 1 125. 28Foro Italiano 1886 1913. 29 Foro Italiano 1887 1474. 30 Giuresprudenzia Italiana 1886-1,1228. 31 Giuresprudenzia Italiana 1922-1, 1472. 32 Foro Italiano 1929 1 112. 33 Foro Italiano 1925 1 830. 34 Annali X (1952) 115. 35 1n Sucharitkul 1959 it is stated at 251 that the Mixed Courts of Egypt have ceased

to function in 1947, probably a misprint since the correct year (1949) is given in foot­note 4 at 88. On the Mixed Courts generally see J.Y. Brinton, The Mixed Courts of Egypt, Yale University Press 1968. Brinton was an American judge of the Egyptian Mixed Courts and became Chief Justice of the Court of Appeals shortly before the abolition of the system. Much of the following developments is taken from Brinton, Suits Against Foreign States, in 25 A.J.l.L. 50-62 (1931).

36 24 Bulletin de Legislation et de Jurisprudence Egyptiennes 330 (hereinafter cited as Bull.).

37 33 Bull. 25. 38 16 Gazette des Tribunaux Mixtes 123. 39 15 Gazette ... 93. 40 14 Gazette ... 251. 41 19 Gazette ... 251. 4242 Bull. 212. 43 55 Bull. 114. 44 6 7-72 Journal de droit international prive (Clunet) 113 (1946-1949). The regular

Egyptian courts, to which the jurisdiction of the Mixed Courts devolved in 1949, con­tinue to apply the restrictive rule of immunity, citing the previous case-law of the Mixed Courts. See e.g. Court of Appeals in Cairo, decision of 4 May 1966, 28 Revue egyptienne de droit international (Arabic section) 65-69 (1972).

45 E.W. Allen, The Position of Foreign States before National Courts, chiefly in Con-tinental Europe, New York, 1933 at 301, cited by Sinclair, supra note 9 at 134.

46 [1920) P.30. 47 Sinclair, supra note 9 at 127. 48 Sucharitkul 1959 at 66. 49Id.at67. 50[1938) A.C.485. 51 "inrbir. ",mra note 9 at 126.

52[1926] 271 U.S. 562. 53 227 Fed. 473 (1821).

155

54 15 ILM at 759 (1976). For a lucid, up-to-date and detailed comparison of sovereign immunity and the act of state doctrine see Thomas H. Hill, Sovereign Immunity and the Act of State Doctrine: Theory and Policy in United States Law, in 46 RabelsZ 118-164 (1982). On the act of state doctrine see also the October 29,1981 decision of the House of Lords (per Lord Wilberforce) in Buttes Gas and Oil Co. v. Hammer (21 ILM at 92-108 (1982».

55 Dalloz 1849 I 5. 56 Dalloz 1886 I 393. 57 Dalloz 1867 II 49. S8Dalloz 1913 II 201. 59Sirey 1935 1103. (lJSirey 1933 1249. 61 Sucharitkul1959 at 218-222. 62 Sinclair, supra note 9 at 190-192. 63Id. at 192-193. 64Syquia v. Almeda Lopez, Supreme Court of the Philippines August 17, 1949, in

U.N. Legislative Series, Materials on Jurisdictional Immunities of States and Their Prop­erty (U.N. Doc. ST/LEG/SER.B/20 at 360 (1982». Other decisions of the Supreme Court of the Philippines to the same effect are reported in the above compilation.

65 The following developments are based on Sucharitkul1959 at 92-103 and Sinclair, supra note 9, at 137-139.

66 The English text of the Brussels Convention is in Nagendra Singh, International Conventions of Merchant Shipping, London, Stevens and Sons, 1973 at 1433-1438.

67 Annual Digest, 1947, Case No. 30 at 83-84. 68 176 L.N.T.S. (1937), No. 4062. 69 Annual Digest, 1938-1940, Case No. 94. "Xl U.K. Treaty Series, No. 104 (1977), Cmnd. 7040. 71 516 UNTS, No. 7477 at 205 (1964). 72 H. Lauterpacht in 28 BYIL at 270 (1951). This and the following paras. are based

on Sinclair, supra note 9, at 147-170, on Sucharitkul in 149 Recueil des cours at 154-170 (1976) and on A.O. Adede in 6 Brooklyn J. of International Law at 197-215 (1980). See also Rosalyn Higgins in 71 AJ/L at 423 (1977).

73 [1952] A. C. 318; reported in International Law Reports, 1951, Case No. 50 at 210.

74 [1957] 1 Q.B. 438; reported in ILR, 1956 at 160. 7S [1958] A. C. 379; reported in ILR, 1957 at 157. ?6 [1975] 1 W. L. R. 1485. More in this decision in Chapter 2 of Part II infra. 77[1976] 2 W.L.R. 214. 78 [1977] 1 Q. B. 529. For commentary see Higgins in 71 AJ/L 425 (1977). In

stating his reasons for preferring absolute immunity to restrictive immunity, the Nigerian delegate to the Sixth Committee of the General Assembly of the United Nations at its 37th session (1982) had this to say: "My country has been a victim [!] of this restrictive doctrine in some recent decisions handed down by some Courts in Britain in some suits arising out of commercial activities in which my country was a party". The refer­ence is obviously to this and other "Nigerian cement" decisions. See p. 11 of the mimeo­graphed statement circulated by the Permanent Mission of Nigeria to the U.N. prior to delivery at the 41st meeting of the Sixth Committee held on November 10, 1982. The summary record of the meeting (U.N. Doc. A/C.6/37/SR.41 of November 17, 1982) does not reproduce this sentence of the written text and the orally delivered statement.

79 U.N. Doc. ST/LEG/SER.B/20, supra note 64 at 625 in fine. &:llnformation supplied by the Foreign Office. See U.N. Doc. ST/LEG/SER.B/20,

supra note 64 at 619-620.

156

81 26 Department of State Bulletin at 984-985 (1952). 82 42 ILR at 119-122. 83 Id. at 122. 84 10ILM 1046-1050 (1971). 8S Id. at 1049. 86 10 ILM 1038-1045 (1971). 87425 U.S. 682 (1976). 88 70 AJIL 817 (1976). 89 22ILR 227 (1955). 9045 ILR 83. 91 Dalloz 1969, Som. 122; 52 ILR 315. 92 20 Annuaire franr;ais de droit international 1020 (1974). Hereinafter cited as

AFDI. 9352ILR321. 94 18 AFDI 977 (1972). 9S 26 AFDI 858 (1980). 96 Asian-African Legal Consultative Committee, 4th Session, Tokyo (1961) at 67-68.

PARTS II AND III

1 Laski, The State in Theory and Practice, New York 1968, Pg. 10-11. 2 See Stankiewicz in The New Encyclopedia Britannica, V Sovereignty at p. 313:

"Since World War II the concept of sovereignty has been under concerted attack from philosophers, social scientists, jurists and students of international relations". And see the references listed in the bibliography; also Kazuaki Sono, Sovereignty, This Strange Thing: Its Impact on Global Economic Order, in 9GA.J. Int'l and Compo L., 549-557 (1979).

3 Ward, Sovereignty, p. 179, cited by Brierly (who concurs) in The Basis of Obliga­tions in International Law and Other Papers (Lauterpacht and Waldock, eds.) Oxford 1958, p. 46.

4 0p. cit., p. 349. 5 Ibid., p. xxii. 6 See G. Andrassy, La Souverainete et la Societe des Nations, in 61 Recueil des cours

(1937-III) at 649-655; C.-A. Colliard, Institutions des relations internationales, Paris (Dalloz) 1978, at 90-92 (para. 77).

7 Lord Wilberforce in an address to the 58th Conference of the International Law Association, Report of the Fifty-Eighth Conference Held at Manila, August 27th, 1978 to September 2nd, 1978, London 1980, p. 515.

8Bird, The State Immunity Act of 1978: An English Update, in 13 The International Lawyer 619-643 at 622 (1979).

9Schacht, Islamic Law in Contemporary States, in 8 Am. 1. Compo L., pp. 133 et seq. at 144 (1959). The Supreme Court of Pakistan had occasion in 1972 to rule that: "The Muslim Shariat does not embrace the concept ... that a sovereign can do no wrong and cannot be sued in a municipal Court .... On the contrary, in Shariat a sovereign can be sued in the Court of a Qazi (judge) and, like any other citizen is subject to his jurisdic­tion .... " Mir Baluch Khan et al. V. Mst. Lal Bibi et al., The All Pakistan Legal Decisions [P.L.D.] 1972 SC 84.

lOv, 120 (Pickthall's translation). See also iii, 189, xxiv, 42 and lxvii, 1. This theologi­cal position has also coloured the Islamic juristic concept of private property; see Badr, La prop rete en droit islamique, in Annuaire de la justice 1966(1)-1967, Algiers 1967, pp. 203-208.

11 Badr, Islamic Law: Its Relation to Other Legal Systems, in 26 Am. J. Compo L. 190 (1978). Compare the view of the French pUblicist Jean Bodin (1530-1596) who held that the sovereign's powers were unrestrained by French law but subject to the laws of God, of nature and of nations. See Gardot, Jean Bodin: Sa place parmi les fondateurs du droit international, in 50 Recueil des cours, 611-628 (1934).

12 Keir and Lawson, Cases in Constitutional Law, 2nd ed., 1933, p. 298. 13Wade ,Administrative Law, 4th ed., 1977, p. 646. 14Cambier, Droit administratif, Bruxelles, 1968, p. 246. 15 Rolland, Precis de droit administratif, Paris, 1957, pp. 71-72. 16 Benoit, Le droit administratif franfais, Paris, 1968, para. 720. 17Waline, Droit administratif, Paris. 1937, p. 195. 18 pisar, Coexistence and Commerce, New York 1970, pp. 269-270. See also Vyshin­

sky, The Law of the Soviet State, New York 1948, p. 500: "In civil trials the court decides controversies touching the rights and interests of citizens and of state and social institutions and organizations.", and p. 536: "In the USSR, the principle that the parties

158

stand upon an equality in court is developed with complete logic and with no limitations of any sort."

19The term is used here and in some of the following paragraphs for the sake of con­venience. See text preceding note 1 and following note 11 above.

20[1976)1 AllE.R. 78at95. 21Cf. Brownlie, Principles of Public International Law, Oxford 1973, pp. 315-316:

"The concept of state immunity is treated very often in the context of statements in which the immunity features as a bar to a jurisdiction of the state of the forum which would exist but for the doctrine of immunity, and which can be waived by the bene­ficiary state .... It is, however, important to bear in mind that state immunity may appear as a doctrine of inadmissibility or non-justiciability rather than an immunity in the strict sense. In other words the national court has no competence to assert jurisdic­tion: it is a matter of the essential competence of the local courts in relation to the sub­ject-matter. "

22 Libyan American Oil Co. v. Socialist People's Libyan Arab Jamahiriya, 482 F. Sup~. 1175 (1980).

326 U.S. 310;66 S. Ct. 154; 90 L. Ed. 95 (1945). 24 355 U.S. 220; 78 S. Ct. 199; L. Ed. 2nd 223 (1957). 25 482 F. Supp. 1208 (1980). 26 614 F. 2d 1247; 74 AJIL 939 (1980). Affirmed by the U.S. Court of Appeals, D.C.

Cir. April 28, 1981,652 F. 2d 186; 76 AJIL, 173 (1982). 27500 F. Supp. 320. 280n these see Wolff, Private International Law, Oxford 1950, pp. 64-92 and 258-

262; Goodrich and Scoles, Conflict of Laws, St. Paul, 1964, pp. 101-141; Szaszy, Inter­national Civil Procedure, A comparative Study, Leyden, 1967, pp. 290-368; Ehrenzweig and Jayme, Private International Law, Vol. 2, Leiden and Dobbs Ferry, 1973, pp. 4-49; Rigaux, Droit international prive, t. I, Bruxelles, 1977, pp. 183-194. See also F.A. Mann, The Doctrine of Jurisdiction in International Law, in III Receuil des cours, 1964 I, 1-162 at 73-81; Brownlie, supra note 21 at 292; Franz Matscher, Etude des regles de com­petence juridiaire dans certaines conventions internationales, in 161 Recueil des cours, 1978 III, 127-228.

29[1975) 3 AllE.R. 961. 30XXXI Annuaire suisse de droit international 219 (1975), also cited by Lalive in X

Netherlands Yearbook of International Law at 161 (1979). 31 75 AJIL 153 (1981); 20 I.L.M. 151 (1981). 32 M.M. Boguslavsky, Foreign State Immunity: Soviet Doctrine and Practice, in X

Netherlands Yearbook of International Law (1979) at 169. 33It has been maintained (for example, Brownlie, Principles of Public International

Law, Oxford 1973, p. 326) that what is in issue is not the domestic state's sovereignty alone but the interaction of two sovereignties. If this is the way we conceive of the prob­lem then of the two sovereignties the one which reaches out into the juridical sphere of the other by doing business in its territory will have to take second place to the terri­torial sovereignty and has no valid claim to being asserted to the latter's detriment. Compare the dissenting opinion of Laskin J. of the Supreme Court of Canada in Govern­ment of the Democratic Republic of the Congo v. Venne: "Independence as a support for absolute immunity is inconsistent with the absolute territorial jurisdiction of the host state; and dignity, which is a projection of independence or sovereignty, does not im­press when regard is had to the submission of states to suit in their own courts." in X The Canadian Yearbook of International Law 321 (1972).

34 John P. Dawson, The Oracles of the Law 123 (1968), cited by Shael Herman, The Uses and Abuses of Roman Law Texts, 29 Am. J. Compo L. 671 (1981). Herman adds: "Something in the human spirit, certainly accentuated in the legal mind, seeks legiti­macy in custom and tradition. Lawyers cite old cases and dust off old codes to persuade

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clients and judges. A judge's decision seems to gain legitimacy and credibility as it demonstrates how future conduct resembles past conduct in similar circumstances.", id. at 689.

3SBartolus, Tractatus Repressalium (1354), Questio 1/3, para. 10. 36 H. Lauterpacht, The Problems of Jurisdictional Immunities of Foreign States, in

XXVII British Year Book of International Law 220-272. The approach there was mainly inductive, involving a projection into the future of current trends surveyed by the author. In the present study the approach is mainly deductive, based on an analysis of the basic concepts involved. The parallel conclusions reached by the two methods con­firm the correctness of the assimilative position on state immunity.

37Ibid., pp. 237-239. The list is reproduced in a more convenient form in Sucharitkul 1976, supra note 1 (Introduction and Part I) at 192.

38 Both the European Convention (Article 32) and the British State Immunity Act 1978 (Section 16) explicitly rule out the application of their provisions to diplomatic immunities, which thus remain subject to their own separate rules.

39 p. de Visscher and Verhoeven reject the assimilation of the position of the foreign state to that of the state of the forum, on the basis of a hermetic separation of inter­national law and internal law (L'immunite de juridiction et d'execution des Etats, Actes du Colloque conjoint des 30 et 31 janvier 1969, Editions de l'Institut de Sociologie de l'Universite Libre de Bruxelles 1971, p. 53). But the area of state immunity is precisely one area of international law where there is undeniable interpenetration between it and internal law; there can be no hermetic separation here. See text following notes 67 and 100 below. Even socialist jurists who champion a strict legal dualism admit that norma­tive principles of national legal systems "exert great influence upon the development of international law". Tunkin, Theory of International Law, 196-197 (trans. Butler 1974).

40[1977] 3 WLR 778. 41 [1980] I Lloyd's Rep. 23. 42 [1981] 3 WLR 328; 76 AJIL 402 (1982). 43 ln The Case of the S.S. "Lotus" the PCIJ had occasion to rule that " ... the first

and foremost restriction imposed by international law upon a State is that ... it may not exercise its power in any form in the territory of another State." PCIJ Collection of judgements, Series A-No. 10, September 7th, 1927, p. 18.

44 In certain countries a connexion of a kind was sometimes sought through attach­ment of a property of a foreign state, usually a vessel or a bank account, which happened to be in the territory of the state of the forum, thus granting its courts in rem or quasi in rem jurisdiction where no basis for in personam jurisdiction existed. This practice has been abandoned and the device is no longer operative under the provisions of the Euro­pean Convention (Articles 23), of the U.S. Foreign Sovereign Immunities Act of 1976 (Section 1610 (d) (2» and of the U.K. State Immunity Act 1978 (Section 13 (2)(b». The statement in the text therefore stands unqualified.

4S See supra text preceding note 28 regarding secondary issues involving acts jure imperii of foreign states raised in the context of transnational disputes over which the local courts have jurisdiction.

46 Report of the International Law Commission on the work of its thirty-second session, 5 May - 25 July 1980, GAOR, 35th session, Supplement No. 10 (A/35/10), p. 324. Emphasis added.

47Ibid., p. 323, para. 118. 48Promotion of tourism, even by a public entity, was held by the French Cour de

Cassation to be a private activity not immune from the jurisdiction of the local courts. Judgement of 17 January 1973 in a suit against the Spanish National Tourism Office (in XX Annuaire franfais de droit international, 1974 at 1020). The same ruling was handed down by the Superior Federal Regional Court of Frankfurt am/Main in a judgement of 30 June 1977 also against the Spanish National Tourism Office (summarily reported in

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Recht der Internationalen Wirtschaft 1977, p. 720). 49Sucharitkul as Special Rapporteur to the International Law Commission on state

immunity in his fourth report A/CN.4/357, para. 86 (31 March 1982). It may be recalled that in its reply to the Rapporteur's own questionnaire, the U.K. Government stated that the definition of "commercial transaction" in section 3 (3) of the State Immunity Act is "so formulated as to require that attention be directed to the objective nature of particu­lar transactions and not to their purpose". U.N. Legislative Series, Materials on Jurisdic­tional Immunities of States and Their Property (ST/LEG/SER.B/20), p. 625 in fine (1982).

50 A/CN.4/331, para. 48. However, at the Commission's thirty-fourth session (1982) "[s) everal members were of the opinion that ...... , in certain cases, it would be neces-ary also to refer to the "purpose" of the act, especially in regard to purchase of food supplies or other necessities of life to relieve famine or to maintain the livelihood of inhabitants of developing countries or to further their much needed economic develop­ment." (A/CN.4/L.345 at para. 40). This opinion is no doubt based on an insufficient knowledge of the current state of the law and of state practice, or else it is expressed de lege ferenda. If it is adopted by the Commission and if pragraph 2 of draft Article 3 is amended accordingly this would be at variance with the current state of the law of state immunity and would indeed be a regressive step.

SI A. Weiss, Competence ou incompetence des tribunaux a l'egard des Etats etrangers, in Recueil des cours, 1923 - I, pp. 525 et seq. at 544-547.

S2Cited by the Austrian Supreme Court in a judgement of 10 February 1961 (2 Ob 243 60) from the appendix to Spruth's Gerichtsbarkeit iiber fremde Staaten, p. 93. In the same judgement the Court, citing Schnitzer, Spruth and Dahm, held that "an act must be deemed to be a private act where the State acts through its agencies in the same way as a private individual can act. An act must be deemed to be a sovereign act where the State, on the basis of its sovereignty, performs an act of legislation or administration (makes a binding decision). Sovereign acts are those in respect of which equality between the parties is lacking and where the place of equality is taken by surordination of one party to the other. ... To act as a sovereign State means to act in the performance of sovereign rights. To enter into private transactions means to put oneself on a basis of equality with private individuals. '" There are cases in which a State descends from its elevated position and makes its appearance in legal capacities and in spheres in which private individuals move."

S3 In a letter to the Legal Counsel of the United Nations, dated 3 July 1979, the Legal Adviser to the Foreign and Commonwealth Office of the U.K. stated that the State Immunity Bill, as presented to the Parliament, had been circulated to all diplomatic missions in London and that no State which was sent the legislation in draft offered substantial cirticism of its terms. This would indicate at least a tacit consensus on the restrictive approach and on the objective definition of acts jure imperii.

s4Swiss law also contains a provision creating a forum rei sitae by virtue of the res attached, although neither creditor nor debtor need be domiciled in Switzerland. This provision is much criticized. See Lalive, Swiss Law and Practice in Relation to Measures of Execution against the Property of a Foreign State, in X Netherlands Yearbook of International Law, 153-166 at 163 (1979). Switzerland has signed the European Con­vention and is expected to ratify it in the near future. In view of Article 23 of the Con­vention, this provision of Swiss law will have to be repealed. In a recent case opposing Libya and the Libyan American Oil Co., the Swiss Federal Supreme Court decided on 19 June 1980 (75 AJIL 153 (1981» that with regard to enforcement measures against foreign states "a sufficient domestic relationship" must be present in order to assume jurisdiction. The Court defined "a sufficient domestic relationship" under Swiss case law as "present if the debt was contracted or is to be settled in Switzerland or if the foreign state as debtor has engaged in actions suited to establish venue in Switzerland .... The mere fact that assets of the debtor are located in Switzerland cannot create such a rela­tlnn~hin "

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SS Fritz Enderlein, The Immunity of State Property from Foreign Jurisdiction and Execution: Doctrine and Practice of the German Democratic Republic, in X Netherlands Yearbook of International Law (1979), 111-124 at 113, text accompanying note 17; M.M. Boguslavsky, Foreign State Immunity: Soviet Doctrine and Practice, in X Nether­lands Yearbook of International Law (1979), 167-177 at 169.

56 According to Marston, the United Kingdom Act was precipitated, inter alia, by the realization that "the more restrictive immunity accorded in most other states resulted in the embarrassing position that the United Kingdom was unable to assert immunity when sued in foreign courts whereas other states sued in United Kingdom courts could assert immunity on similar facts". Journal of World Trade Law, July-August 1979, p. 349.

s7 UNTS, Vol. 687, p. 221. S8 USSR and Romania, UNTS, voL 226, p. 79; USSR and Hunpry, UNTS, voL 216,

p. 247; USSR and Czechoslovakia, UNTS, vol. 217, p. 35; USSR and Bulgaria, UNTS, vol. 217, p. 97; USSR and the GDR, UNTS, vol. 292, p. 75; USSR and Mongolia, UNTS, vol. 687, p. 237; USSR and Albania, UNTS, vol. 313, p. 261; USSR and Viet Nam, UNTS, vol. 356, p. 149; USSR and China, UNTS, vol. 313, p. 135; USSR and People's Republic of Korea, UNTS, vol. 399, p. 3; Czechoslovakia and USSR, registered sub No. 12907 with the Treaty Section of the U.N. Secretariat; Denmark and USSR, UNTS, vol. 8, p. 201; Finland and USSR, UNTS, vol. 217, p. 3; Switzerland and USSR, UNTS, voL 217, p. 87; Italy and USSR, UNTS, vol. 217, p. 181; France and USSR, UNTS, vol. 221, p. 79; Austria and USSR, UNTS, vol. 240, p. 289; Japan and USSR, UNTS, vol. 325, p. 35; Federal Republic of Germany and USSR, UNTS, voL 346, p. 71; Netherlands and USSR, Tractatenblad van het Koninkrijk der Nederlanden, No. 163, 1971; U.S.A. and USSR, 67 Department of State Bull. 592 (1972); Switzerland and Czechoslovakia, Recueil officiel des lois de la Con[ederation, 1954, p. 748; Switzerland and Bulgaria, id., 1973, p. 598; Switzerland and Roumania, id., 1973, p. 609; Switzerland Poland, id., 1973, p. 1790; Switzerland and Hungary, id., 1973, p. 2264; USSR and Iraq, UNTS, vol. 328, p. 118; USSR and Togo, UNTS, voL 730, p. 187; USSR and Ghana, UNTS, vol. 655, p. 171; USSR and Yemen, UNTS, vol. 672, p. 315; USSR and Brazil, UNTS, voL 646, p. 277; USSR and Singapore, UNTS, vol. 631, p. 125; USSR and Costa Rica, registered sub No. 13734 with the Treaty Section of the U.N. Secretariat; USSR and Spain, registered sub No. 13736 with the Treaty Section of the U.N. Secretariat. The above treaties cover the period from 1946 to 1973.

It is interesting to note that Boguslavsky (supra note 55 at 171) does not mention any of the above-listed trade agreements but simply states that "[ t) he international agreements concluded by the Soviet State start from the principle of immunity, at the same time providing for certain exceptions to this principle". There is no intimation of the fact that the so-called "exceptions" leave little room for the application of the "prin­ciple". The short discussion that follows (at 171-172) deals with the privileges and immunities of international organizations in the territory of the USSR, a subject which is beyond the purview of state immunity as such.

"It is ironic that the Soviet Union, formerly a supporter of absolute immunity, should provide more convincing support for a restrictive position (especially in relation to execution) than the fluctuating United States treaty practice". Crawford, "Execution of Judgments and Foreign Sovereign Immunity", in 75 AJIL 820-869 at 831 (1981).

S9Enderlein, supra note 55. at 116. 6OId., at 115; Boguslavsky, supra note 55 at 169-170. 61 /d., at 116. 62Panstwo i Prawo 1949, No.4, p. 119. Cited in the Report of the International Law

Commission on the work of its thrity-second session (1980) (GAOR, 35th session, Supplement No. 10 (A/35/10), p. 342. The following is the relevant passage of the above judgement: "In deciding upon the questions of court immunities with regard to foreign States, one should base directly on the generally recognized principles accepted in inter­national jurisprudence, outstanding among which is that of reciprocity among States. The principle consists in one State rejecting or granting court immunity to another State

162

to the very same extent as the latter would grant or reject the immunity of the former". The Polish Supreme Court again ruled along the same lines in its decision og 26 March 1958, II Int'l Law Reports 178 (1958).

With regard to the practice of Argentine courts, see statement by Prof. Grigera Naon in The International Law Associlltion Report of the Fifty-Eighth Conference (Manilla, 1978), London 1980, p. 445. In Yugoslavia a Decree of 1952 mentioned reciprocity explicitly. Although the provisions of the Law on Enforcement Procedure of 1978 which replaced the said Decree do not mention reciprocity, it is believed that granting or denial of immunity will still be based "on considerations of reciprocity". T. Varady, Immunity of State Property from Execution in the Yugoslav Legal System, X Netherlands Year­book of International Law (1979) at 94.

The requirement of reciprocal treatment is expressly mentioned in Article 24 of the Argentine Code of Civil and Commercial Procedure as amended in 1977. The provision reads:

No action shall be taken on a complaint against a foreign State without first seeking from its diplomatic representative, through the Ministry of Foreign Affairs and Worship, the consent of that country to submit to proceedings. How­ever, the executive branch may declare, by means of a duly substantiated decree, with respect to a particular country, that there is no reciprocity for the purposes of this provision. In such cases, the foreign State with respect to which such a declaration has been made shall be subject to Argentine jurisdiction. If the decla­ration of the exeuctive branch specifies that the absence of reciprocity applies only in certain respects, the foreign country shall be subject to Argentine jurisdic­tion only in those respects. The executive branch shall declare that reciprocity is established when the foreign country so amends its rules.

In the light of the above, there is sufficient reason to question the statement by Sinclair (supra note 1 (Introduction and Part I) at 207) to the effect that: "Outside Poland, and apart from the isolated dicta [in a 1950 judgment of the English Court of Appeal] to which reference has been made, there is little evidence that the principle of reciprocity has been considered to be relevant to the disposition of a plea of immunity." It is clear that reciprocity is indeed a consideration in granting or in denying immunity.

In his study on reciprocity in private international law, Professor Lagarde, who is very critical of the concept in that particular field, admits nevertheless that "dans les marges du droit international prive ou I'Etat peut apparaftre comme sujet de droit - par example, les immunites de juridiction - la reciprocite, sans etre necessairement une bonne solution, est beaucoup moins perturbatrice". Paul Lagarde, La reciprocite en droit international prive, in 154 Recueil des cours (1977 - I), 102-214 at 206, note 216. On reciprocity in public international law in general, see Emmanuel Decaux, La reciprocite en droit international, Paris, 1980.

63Virally in 122 Recueil des cours de l'Academie de droit international 51 (1967 III). 64 See note 68 infra. 65 Suy infra note 73. 66 Enderlein, supra note 55 at 113-114 and 115

"Only the state itself may decide whether and to what extent it will waive the immunity to which it is entitled .... The right of a state to immunity derives from international law. The extent to which it waives the right is exclusively decided by the state itself, and can only be assessed on the basis of appropriate international agreements or on the basis of its own laws."

Two remarks come to mind: 1. It is not generally recognized that there is a rule of international law requiring that foreign states be granted immunity from jurisdiction (see text accompanying note 81 and note 100 below). 2. What we have termed the state's "passive" position with regard to state immunity cannot be determined by its own laws

163

because it is governed by the laws of the foreign states before whose courts the state is cited as defendant.

67Ibid., text accompanying note 16. 68 Report of the International Law Commission on the work of its thirty-second

session, 5 May - 25 July 1980, GAOR, 35th session, Supplement No. 10 (A/35/1O), p. 321, para. 115 and p. 330, para. (7).

69 Legal fictions have been inseparable from the development of the law and have often accompanied the emergence of new rules in many an area. In a sense fictions, al­though intellectually objectionable, serve a good purpose by facilitating the progressive development of the law and smoothing the way for its transition from one phase to another without doing violence to strongly held preconceived ideas about what the law is or what it ought to be. The task of juridical science is to uncover the objective reality behind the proclaimed fiction.

'XlTunkin has observed that the antithesis between ideologies is no insuperable barrier to the development of international law and that the said development has been much faster in the postwar period despite its being a period of acute struggle between socialist and bourgeois ideologies. He further noted that "[ w) hen international law rules are formulated, specifically during the conclusion of international treaties, it is not a matter of agreement on ideological questions but of coordination of rules governing the behav­iour of states." Tunkin, International Law and Ideological Struggle, in International Affairs (Moscow) November 1971, pp. 25-26.

71 "In my opinion the proper course to adopt would be to recommend the abolition (subject to certain safeguards) of the immunity of foreign States and in general to assimilate their position to that of the individual". E. Lauterpacht in the Report of the 45th Conference of the International Law ASlocilltion (Lucerne, 1952), p. 227. "[J) e n'besiterais pas Ii souscrire Ii I'abolition de la regIe d'immunite de juridiction. Sa suppres­sion me parait souhaitable, parce qu'elle cree une zone d'indetermination et provoque des carences juridictionnelles regrettables et parfois choquantes". Charles Carabiber, id., p.230.

72 I.M. Sinclair, The European Convention on State Immunity, in 22 The Int'I and Co~arative Law Quarterly 254-283 at 267 (1973).

..... this principle [of reciprocity) ... has to be recognized as a legal principle applicable to the doctrine of sovereign immunity in the same way as it governs the law of diplomatic intercourse as codified in Vienna in 1961 ". Suy, Immunity of States before Belgian Courts and Tribunals, in 27 ZaoRV 660-692 at 692 (1967).

?4 Suy, supra note 73 at 691. See also Crawford, supra note 58 in Fme, at 820: "while international law permits execution against the property of foreign sovereigns, there are distinct restrictions on such execution, apart from general restrictions on suit."

'75 Sinclair, supra note 72 at 273. ~See summary and comments in Suy, supra note 73 at 687-691. 77Sinclair, supra note 72 at 274-275. 78 T.F. 10 February 1960, R.O.86.1.23, cited by Delaume, Transnational Contracts:

Applicable Law and Settlement of Disputes, Dobbs Ferry, N.Y. 1978, para. 12.02, note 8.

79Delaume, op.cit., loco cit., notes 11 and 14. 80Cited by Steinberger in the Proceedings of the International Law Association Con­

ference on State Immunity held in London on 17 November 1978, p. 18. 8I Ibid .. On the inexistence of a general rule of immunity in international law see also

note 100 below. 82 XXXV Annuaire suisse de droit international 143 (1979). 83 See Delaume, op. cit., para. 12.03. 84I.M. Sinclair, The European Convention on State Immunity, in 22 Inn and Compo

L.Q. 254-283 (1973); Weber, The Foreign Sovereign Immunities Act of 1976: Its Origin, Meaning and Effect, in 3 Yale Studies in World Public Order 1-121 (1976-1977); R.B.

164

von Mehren, The Foreign Sovereign Immunities Act of 1976, in 17 Colum. J. Transnat'! L. 33-66 (1978); A.O. Adede, The Doctrine of Sovereign Immunity under Int'l Commer­ciol Law, in 17 Indian J. of Int'! 1. 245-260 (1977), deals with the European Convention and the U.S. Act; G.R. Delaume, The State Immunity Act of the United Kingdom, in 73 AJIL 185-199 (1979); F. Daniel Leventhal, The Bay of Campeche Oil Spill: Obtaining Jurisdiction over Petroleos Mexicanos under the FSIA of 1976, in 9 Ecology Law Quar­terly 341-377 (1980); Beverly May Carl, Suing Foreign Governments in American Courts: The United States Foreign Immunities Act in Practice, 33 Southwestern L. J. 1009 (1979); A.O. Adede, United Kingdom Abandons the Doctrine of Absolute Sover­eign Immunity, in 6 Brooklyn J. of Int'l 1. 197-215 (1980); Kahale, G. and Vega, M.A., Immunity and Jurisdiction: Toward a Uniform Body of Law in Actions Against Foreign States, in 18 Colum. J. Transnat'l 1. 211-258 (1979); Marston, State Immunity -Recent United Kingdom Developments, in 13 Journal of World Trade Law 349-355 (1979); Stephen Bird, The State Immunity Act of 1978: An English Update, in 13 The International Lawyer 619-643 (1979). F .A. Mann, The State Immunity Act 1978, in 50 British Year Book of International Law 1979 at 43-62 (1981).

85 This is obviously an assimilation of the foreign state's position to that of the domestic state. The Act also treats the foreign state on a par with the U.S. Government regarding several procedural matters (see von Mehren, supra note 84 at 45-46). In view of this, it is permissible to question the unqualified statement by one of the drafters of the Act to the effect that "it does not base itself on Professor Lauterpacht's assimilative approach" (Monroe Leigh in the Proceedings of the International Law Association Con­ference on State Immunity, supra note 80 at 5).

861t appears that the absence of a provision on to ts in the Pakistani Ordinance was motivated by the desire to maintain diplomatic and consular immunities intact in this particular area.

87 Some writers view as significant the fact that the Convention starts with the enu­meration of cases where immunity cannot be claimed and only later affirms the basic rule of immunity, while the two Acts reverse this order by first affirming state immunity and then listing the exceptional cases of non-immunity. They therefore describe the prin­ciple of immunity in the Convention as purely "residual" (Sinclair, supra note 84 at 267; Delaume, supra note 84 at 186). It does not appear that the formal sequence of basic rule and of exceptions is of any substantive importance. All three instruments consider immunity to be the rule outside the specific areas of non-immunity listed by each of them. Immunity is described as "residual" also in the case of the U.K. Act, Mann, supra note 84 at 62.

88 XIX Internotional Legal Materials at 409-428 (1980). 89Restatement 2nd, Conflict of Laws, Sections 145 and 156. 90 In its judgement of 30 October 1962 (BvM 1/60) the Constitutional Court of the

Federal Republic of Germany ruled that there is no established rule of international law precluding the local courts from hearing a claim against a foreign state relating to the ownership of the land on which its embassy building stands.

91 Explanatory Report, pp. 6-7. 92 A system comparable to that of the European Convention is to be found in the

Convention on the Settlement of Investment Disputes (1965) of the IBRD. Under Article 54 contracting states recognize the awards of the Arbitral Tribunal established by the Convention as binding and undertake to enforce the pecuniary obligations imposed by such awards. Article 55 adds that there is no derogation from the law in force in any contracting state relating to immunity of that state or of any foreign state from execu­tion.

93 For a detailed study of the provisions of the U.S. Act on immunity from execution see Del Bianco, Execution and Attachment under the Foreign Sovereign Immunities Act of 1976, in 5 Yale Studies in World Public Order 109 - 146 (1978).

165

94 0ne is reminded of Bertrand Russell's words: "Opinions held with passion are al-ways those for which no good ground exists".

95 Schwebel in 74 AJIL 967 (1980). 96 Mann, supra note 84 at 50. 97ld., at 62. 98 See footnote 39 above. 99E.1. Usenko, Theoretical Problems of the Relation of International Law and

Municipal Law, in The Soviet Yearbook of International Law at 87 (1977). 100 Cavare, L'immunite de juridiction des Etats etrangers, in 58 RGDIP 177-207 at

181-182 and 207 (1954). The author cites other opinions denying the existence of such a rule of international law and cites judicial precedents to the same effect from Italy and France. See also Lauterpacht, supra note 38 at 226-232; the 1962 judgement of the Con­stitutional Court of the Federal Republic of Germany cited in note 90 above; the same court's decisions of 13 Dec. 1977 (BVerfGE 46,342 at 388 et seq. and of 12 April 1983 in the Nationallianian Oil Co. case (not yet reported as of this writing); 0.1. Lissitzyn, Sovereign Immunity as a Norm of International Law, in Transnational Law in a Changing Society (Friedmann, Henkin and Lissitzyn, eds.), at 189-190 and 193 (1972). Earlier the Supreme Court of Austria in Dralle v. Republic of Czechoslovakia (1950) ruled that: "the classic doctrine of immunity has lost its meaning and, ratione cessante, can no longer be recognized as a rule of international law." International Law Reports 1950 at 163. For the similar position of the Swiss courts see LaIive in X Netherlands Yearbook of International Law (1979).

101 De Visscher and Verhoeven, footnote 39 supra at 54. UY2lbid. loolbid., at 57. l04lbid. at 46 in fine and 50-51, following in this an earlier opinion expressed by

Niboyet, Immunites de juridiction et incompetence d'attribution, in XXIX Revue cri­ti~ue de droit international prive, 139-158 at 143-144 (1950).

05 Niboyet, supra note 104 at 139-144. I06Freyria, Les limites sur l'immunite de juridiction et d'execution des Etats etran-

gas, XL RCDIP, 449-470 (1951). l07Niboyet, supra note 104 at 142 and 147. 108 See Wolff, supra note 28 at 52, Section 44. I09C.K. Ogden, Bentham's Theory of Fictions, London 1932, p. 141. 110 Annuaire de I1nstitut de droit international 1891 at 436-437. lllAnnuaire de I'lnstitut de droit international 1954 at 221-222, as amended and

finally adopted, see pp. 200-227. 1121d., at 210 and 216-217. 113 26 AJIL, Supplement (1932) at 609-640. 114 IBA, Sixth Conf. Report, Martinus Nijhoff, The Hague, 1957 at 238-247. 115 IBA, Eighth Conf. Report, Martinus Nijhoff, The Hague, 1960 at 8-10. 116 ILA Report of the Thirty-Fourth Conference (Vienna, 1926) at 426-440. 117ILA Report of the Forty-Fifth Conference (Lucerne, 1952) at 210-232. 1181d., at vii-viii. 119 ILA Report of the Fifty-Eighth Conference (Manila, 1978) at 443-449. 120 ILA Report of the Fifty-Ninth Conference (Belgrade, 1980) at 208-262. l21 See the ICl Advisory Opinions on the Effect of A wards (lCl Reports 1954) and

on Certain Expenses of the United Nations (lCl Reports 1962). 122 See footnotes 22 and 26 above. 123 Supra text accompanying notes 1-11. I'JASupra text accompanying notes 12-20. 125 Supra text accompanying notes 33-36 and preceding note 94. l'JEJSupra text accompanying notes 21,32,43,101-103.

166

127 Supra text following note 39 and accompanying notes 47·53. 128Supra text accompanying notes 56·70. 129 See above under Immunity from Suit: A. Contract. 130See above under Immunity from Suit: B. Torts. 131 See above under Immunity from Suit: C. Ownership and Possession, and D. Obli·

gations derived Directly from the Law. 132Supra text following notes 71,101 and infra text following note 133. 133 Supra text accompanying notes 74-83 and 91·93.

APPENDICES

APPENDIX I

EUROPEAN CONVENTION ON STATE IMMUNITY AND ADDITIONAL PROTOCOL 1972

PREAMBLE

The member States of the Council of Europe, signatory hereto,

Considering that the aim of the Council of Europe is to achieve a greater unity between its Members;

Taking into account the fact that there is in international law a tendency to restrict the cases in which a State may claim immunity before foreign courts;

Desiring to establish in their mutual relations common rules relating to the scope of the immunity of one State from the jurisdiction of the courts of another State, and designed to ensure compliance with judgments given against another State;

Considering that the adoption of such rules will tend to advance the work of har­monisation undertaken by the member States of the Council of Europe in the legal field,

Have agreed as follows:

CHAPTER 1. IMMUNITY FROM JURISDICTION

Article 1

1. A contracting State which institutes or intervenes in proceedings before a court of another Contracting State submits, for the purpose of those proceedings, to the juris­diction of the courts of that State.

2. Such a Contracting State cannot claim immunity from the jurisdiction of the courts of the other Contracting State in respect of any counterclaim:

(a) arising out of the legal relationship or the facts on which the principal claim is based;

(b) if, according to the provisions of this Convention, it would not have been en­titled to invoke immunity in respect of that counterclaim had separate proceedings been brought against it in those courts.

3. A Contracting State which makes a counterclaim in proceedings before a court of another Contracting State submits to the jurisdiction of the courts of that State with respect not only to the counterclaim but also to the principal claim.

Article 2

A Contracting State cannot claim immunity from the jurisdiction of a court of an­other Contracting State if it has undertaken to submit to the jurisdiction of that court either:

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(a) by international agreement; (b) by an express term contained in a contract in writing; or

(e) by an express consent given after a dispute between the parties has arisen.

Article 3

1. A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if, before claiming immunity, it takes any step in the proceed­ings relating to the merits. However, if the State satisfies the court that it could not have acquired knowledge of facts on which a claim to immunity can be based until after it has taken such a step, it can claim immunity based on these facts if it does so at the earliest possible moment.

2. A Contracting State is not deemed to have waived immunity if it appears before a court of another Contracting State in order to assert immunity.

Article 4

1. Subject to the provisions of Article 5, a Contracting State cannot claim immu­nity from the jurisdiction of the courts of another Contracting State if the proceedings relate to an obligation of the State, which, by virtue of a contract, falls to be discharged in the territory of the State of the forum.

2. Paragraph 1 shall not apply: (a) in the case of a contract concluded between States; (b) if the parties to the contract have otherwise agreed in writing;

(e) if the State is party to a contract concluded on its territory and the obligation of the State is governed by its administrative law.

Article 5

1. A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if the proceedings relate to a contract of employment between the State and an individual where the work has to be performed on the territory of the State of the forum.

2. Paragraph 1 shall not apply where: (a) the individual is a national of the employing State at the time when the proceed­

ings are brought;

(b) at the time when the contract was entered into the individual was neither a national of the State of the forum nor habitually resident in that State; or

(e) the parties to the contract have otherwise agreed in writing, unless, in accor­dance with the law of the State of the forum, the courts of that State have exclusive jurisdiction by reason of the subject-matter.

3. Where the work is done for an office, agency or other establishment referred to in Article 7, paragraphs 2 (a) and (b) of the present Article apply only if, at the time the contract was entered into, the individual had his habitual residence in the Contracting State which employs him.

Article 6

1. A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if it participates with one or more private persons in a com­pany, association or other legal entity having its seat, registered office or principal place of business on the territory of the State of the forum, and the proceedings concern the

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relationship, in matters arising out of that participation, between the State on the one hand and the entity or any other participant on the other hand.

2. Paragraph 1 shall not apply if it is otherwise agreed in writing.

Article 7

1. A contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if it has on the territory of the State of the forum an office, agency or other establishment through which it engages, in the same manner as a private person, in an industrial, commercial or financial activity, and the proceedings relate to that activity of the office, agency or establishment.

2. Paragraph 1 shall not apply if all the parties to the dispute are States, or if the parties have otherwise agreed in writing.

Article 8

A Contracting State cannot claim immunity from the jurisdiction of a court of an­other Contracting State if the proceedings relate:

(a) to a patent, industrial design, trade-mark, service mark or other similar right which, in the State of the forum, has been applied for, registered or deposited or is otherwise protected, and in respect of which the State is the applicant or owner.

(b) to an alleged infringement by it, in the territory of the State of the forum, of such a right belonging to a third person and protected in that State;

(c) to an alleged infringement by it, in the territory of the State of the forum, of copyright belonging to a third person and protected in that State;

(d) to the right to use a trade name in the State of the forum.

Article 9

A Contracting State cannot claim immunity from the jurisdiction of a court of an­other Contracting State if the proceedings relate to:

(a) its rights or interests in, or its use or possession of, immovable property; or

(b) its obligations arising out of its rights or interests in, or use or possession of, immovable property

and the property is situated in the territory of the State of the forum.

Article 10

A Contracting State cnnot claim immunity from the jurisdiction of a court of an­other Contracting State if the proceedings relate to a right in movable or immovable property arising by way of succession, gift or bona vacantia.

Article 11.

A Contracting State cannot claim immunity from the jurisdiction of a court of an­other Contracting State in proceedings which relate to redress for injury to the person or damage to tangible property, if the facts which occasioned the injury or damage oc­curred in the territory of the State of the forum, and if the author of the injury or damage was present in that territory at the time when those facts occurred.

Article 12

1. Where a Contracting State has agreed in writing to submit to arbitration a dis­pute which has arisen or may arise out of a civil or commercial matter, that State may

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not claim immunity from the jurisdiction of a court of another Contracting State on the territory or according to the law of which the arbitration has taken or will take place in respect of any proceedings relating to:

(a) the validity or interpretation of the arbitration agreement;

(b) the arbitration procedure;

(c) the setting aside of the award,

unless the arbitration agreement otherwise provides.

2. Paragraph 1 shall not apply to an arbitration agreement between States.

Article 13

Paragraph 1 of Article I shall not apply where a Contracting State asserts, in proceed­ings pending before a court of another Contracting State to which it is not a party, that it has a right or interest in property which is the subject-matter of the proceedings, and the circumstances are such that it would have been entitled to immunity if the proceed­ings had been brought against it.

Article 14

Nothing in this Convention shall be interpreted as preventing a court of Contracting State from administering or supervising or arranging for the administration of property, such a trust property or the estate of a bankrupt, solely on account of the fact that an­other Contracting State has a right or interest in the property.

Article 15

A Contracting State shall be entitled to immunity from the jurisdiction of the courts of another Contracting State if the proceedings do not fall within Articles 1 to 14; the court shall decline to entertain such proceedings even if the State does not appear.

CHAPTER II. PROCEDURAL RULES

Article 16

1. In proceedings against a Contracting State in a court of another Contracting State, the following rules shall apply.

2. The competent authorities of the State of the forum shall transmit

the original or a copy of the document by which the proceedings are instituted;

a copy of any judgment given by default against a State which was defendant in the proceedings,

through the diplomatic channel to the Ministry of Foreign Affairs of the defendant State, for onward transmission, where appropriate, to the competent authority. These documents shall be accompanied, if necessary, by a translation into the official language, or one of the official languages, of the defendant State.

3. Service of the documents referred to in paragraph 2 is deemed to have been effected by their receipt by the Ministry of Foreign Affairs.

4. The time-limits within which the State must enter an appearance or appeal against any judgment given by default shall begin to run two months after the date on which the document by which the proceedings were instituted or the copy of the judg­ment is received by the Ministry of Foreign Affairs.

5. If its rests with the court to prescribe the time-limits for entering an appearance or for appealing against a judgment given by default, the court shall allow the State not

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less than two months after the date on which the document by which the proceedings are instituted or the copy of the judgment is received by the Ministry of Foreign Affairs.

6. A Contracting State which appears in the proceedings is deemed to have waived any objection to the method of service.

7. If the Contracting State has not appeared, judgment by default may be given against it only if it is established that the document by which the proceedings were insti­tuted has been transmitted in conformity with paragraph 2, and that the time-limits for entering an appearance provided for in paragraphs 4 and 5 have been observed.

Article 17

No security, bond or deposit, however described, which could not have been required in the State of the forum of a national of that State or a person domiciled or resident there, shall be required of a Contracting State to guarantee the payment of judicial costs or expenses. A State which is a claimant in the courts of another Contracting State shall pay any judicial costs or expenses for which it may become liable.

Article 18

A Contracting State party to proceedings before a court of another Contracting State may not be subjected to any measure of coercion, or any penalty, by reason of its failure or refusal to disclose any documents or other evidence. However the court may draw any conclusion it thinks fit from such failure or refusal.

Article 19

I. A court before which proceedings to which a Contracting State is a party are instituted shall, at the request of one of the parties or, if its national law so permits, of its own motion, decline to proceed with the case or shall stay the proceedings if other proceedings between the same parties, based on the same facts and having the same pur­pose.

(a) are pending before a court of that Contracting State, and were the first to be instituted; or

(b) are pending before a court of any other Contracting State, were the first to be instituted and may result in a judgment to which the State party to the proceedings must give effect by virtue of Article 20 or Article 25.

2. Any Contracting State whose law gives the courts a discretion to decline to pro-ceed with a case or to stay the proceedings in cases where proceedings between the same parties, based on the same facts and having the same purpose, are pending before a court of another Contracting State, may, by notification addressed to the Secretary General of the Council of Europe, declare that its courts shall not be bound by the provisions of paragraph I.

CHAPTER III. EFFECT OF JUDGMENT

Article 20

I. A Contracting State shall give effect to a judgment given against it by a court of another Contracting State:

(a) if, in accordance with the provisions of Article I to 13, the State could not claim immunity from jurisdiction; and

(b) if the judgment cannot or can no longer be set aside if obtained by default, or if it is not or is no longer subject to appeal or any other form of ordinary review or to annulment.

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2. Nevertheless, a Contracting State is not obliged to give effect to such a judgment in any case:

(a) where it would be manifestly contrary to public policy in that State to do so, or where, in the circumstances, either party had no adequate opportunity fairly to present his case;

(b) where proceedings between the same parties, based on the same facts and having the same purpose:

(i) are pending before a court of that State and were the first to be instituted; (li) are pending before a court of another Contracting State, were the first to be

instituted and may result in a judgment to which the State party to the proceed­ings must give effect under the terms of this Convention;

(c) where the result of the judgment is inconsistent with the result of another judg­ment given between the same parties:

(i) by a court of the Contracting State, if the proceedings before that court were the first to be instituted or if the other judgment has been given before the judg­ment satisfied the conditions specified in paragraph I (b); or

(ii) by a court of another Contracting State where the othe judgment is the first to satisfy the requirements laid down in the present Convention;

(d) where the provisions of Article 16 have not been observed and the State has not entered an appearance or has not appealed against a judgment by default.

3. In addition, in the case provided for in Article 10, a Contracting State is not obliged to give effect to the judgment.

(a) if the courts of the State of the forum would not have been entitled to assume jurisdiction had they applied, mutatis mutandis, the rules of jurisdiction (other than those mentioned in the Annex to the present Convention) which operate in the State against which judgment is given; or

(b) if the court, by applying law other than that which would have been applied in accordance with the rules of private international law of that State, has reached a result different from that which would have been reached by applying the law determined by those rules.

However, a Contracting State may not rely upon the grounds of refusal specified in sub-paragraphs (a) and (b) above if it is bound by an agreement with the State of the forum on the recognition and enforcement of judgments and the judgment fulfils the requirement of that agreement as regards jurisdiction and, where appropriate, the law applied.

Article 21

1. Where a judgment has been given against a Contracting State and that State does not give effect thereto, the party which seeks to invoke the judgment shall be entitled to have determined by the competent court of that State the question whether effect should be given to the judgment in accordance with Article 20. Proceedings may also be broaght before this court by the State against which judgment has been given, if its law so permits.

2. Save in so far as may be necessary for the application of Article 20, the com-petent court of the State in question may not review the merits of the jUdgment.

3. Where proceedings are instituted before a court of a State in accordance with paragraph 1:

(a) the parties shall be given an opportunity to be heard in the proceedings;

175

(b) documents produced by the party seeking to invoke the judgment shall not be subject to legislation or any other like formality;

(c) no security, bond or deposit, however described, shall be required of the party invoking the judgment by reason of his nationality, domicile or residence;

(d) the party invoking the judgment shall be entitled to legal aid under conditions no less favourable than those applicable to nationals of the State who are domiciled and resident therein.

4. Each Contracting State shall, when depositing its instrument of ratification, acceptance or accession, designate the court of courts referred to in paragraph 1, and in­form the Secretary General of the Council of Europe thereof.

Article 22

l. A Contracting State shall give effect to a settlement to which it is a party and which has been made before a court of another Contracting State in the course of the proceedings; the provisions of Article 20 do not apply to such a settlement.

2. If the State does not give effect to the settlement, the procedure provided for in Article 21 may be used.

Article 23

No measures of execution or preventive measures against the property of a Contract­ing State may be taken in the territory of another Contracting State except where and to the extent that the State has expressly consented thereto in writing in any particular case.

CHAPTER IV. OPTIONAL PROVISIONS

Article 24

I. Notwithstanding the provisions of Article 15, any State may, when signing this Convention or depositing its instrument of ratification, acceptance or accession, or at any later date, by notification addressed to the Secretary General of the Council of Europe, declare that, in cases not falling within Article 1 to 13, its courts shall be en­titled to entertain proceedings against another Contracting State to the extent that its courts are entitled to entertain proceedings against States not Party to the present Con­vention. Such a declaration shall be without prejUdice to the immunity from jurisdiction which foreign States enjoy in respect of acts performed in the exercise of sovereign authority (acta jure imperii).

2. The courts of a State which has made the declaration provided for in paragraph 1 shall not however be entitled to entertain such proceedings against another Contracting State if their jurisdiction could have been based solely on one or more of the grounds mentioned in the Annex to the present Convention, unless that other Contracting State has taken a step in the proceedings relating to the merits without first challenging the jurisdiction of the court.

3. The provisions of Chapter II apply to proceedings instituted against a Contract­ting State in accordance with the present Article.

4. The declaration made under paragraph 1 may be withdrawn by notification addressed to the Secretary General of the Council of Europe. The withdrawal shall take affect three months after the date of its receipt,but this shall not affect proceedings instituted before the date on which the withdrawal becomes effective.

176

Article 25

1. Any Contracting State which has made a declaration under Article 24 shall, in cases not falling within Article 1 to 13, give effect to a judgment given by a court of an­other Contracting State which has made a like declaration:

(a) if the conditions prescribed in paragraphs 1 (b) of Article 20 have been fulfilled, and

(b) if the court is considered to have jurisdiction in accordance with the following paragraphs.

2. However, the Contracting State is not obliged to give effect to such a judgment:

(a) if there is a ground for refusal as provided for in paragraph 2 of Article 20; or

(b) if the provisions of paragraph 2 of Article 24 have not been observed.

3. SubjeGt to the provisions of paragraph 4, a court of a Contracting State shall be considered to have jurisdiction for the purpose of paragraph 1 (b):

(a) if its jurisdiction is recognised in accordance with the provisions of an agreement to which the State of the forum and the other Contracting State are Parties;

(b) where there is no agreement between the two States concerning the recognition and enforcement of judgments in civil matters, if the courts of the State of the forum would have been entitled to assume jurisdiction had they applied, mutatis mutandis, the rules of jurisdiction (other than those mentioned in the Annex to the present Conven­tion) which operate in the State against which the judgment was given. This provision does not apply to questions arising out of contracts.

4. the Contracting States having made the declaration provided for in Article 24 may, by means of a supplementary agreement to this Convention, determine the circum­stances in which their courts shall be considered to have jurisdiction for the purposes of paragraph 1 (b) of this Article.

5. If the Contracting State does not give effect to the judgment, the procedure provided for in Article 21 may be used.

Article 26

Notwithstanding the provisions of Article 23, a judgment rendered against a Con­tracting State in proceedigs relating to an industrial or commercial activity, in which the State is engaged in the same manner as a private person, may be enforced in the State of the forum against property of the State against which judgment has been given, used exclusively in connection with such an activity, if

(a) both the State of the forum and the State against which the judgment has been given have made declarations under Article 24;

(b) the proceedings which resulted in the judgment fell within Articles 1 to 13 or were instituted in accordance with paragraphs 1 and 2 of Article 24; and

(c) the judgment satisfies the requirements laid down in paragraph 1 (b) of Article 20.

CHAPTER V. GENERAL PROVISIONS

Article 27

1. For the purposes of the present Convention, the expression "Contracting State" shall not include any legal entity of a Contracting State which is distinct therefrom and is capable of suing or being sued, even if that entity has been entrusted with public functions.

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2. Proceedings may be instituted against any entity referred to in paragraph 1 be-fore the courts of another Contracting State in the same manner as against a private person; however, the courts may not entertain proceedings in respect of acts performed by the entity in the exercise of sovereign authority (acta jure imperii).

3. Proceedings may in any event be instituted against any such entity before those courts if, in corresponding circumstances, the courts would have had jurisdiction if the proceedings had been instituted against a Contracting State.

Article 28

1. Without prejudice to the provisions of Article 27, the constituent States of a Federal State do not enjoy immunity.

2. However, a Federal State Party to the present Convention, may, by notifica-tion addressed to the Secretary General of the Council of Europe, declare that its con­stituent States may invoke the provisions of the Convention applicable to Contracting States, and have the same obligations.

3. Where a Federal State has made a declaration in accordance with paragraph 2, service of documents on a constituent State of a Federation shall be made on the Min­istry of Foreign Affairs of the Federal State, in conformity with Article 16.

4. The Federal State alone is competent to make the declarations, notifications and communications provided for in the present Convention, and the Federal State alone may be party to proceedings pursuant to Article 34.

Article 29

The present Convention shall not apply to proceedings concerning:

(a) social security;

(b) damage or injury in nuclear matters;

(c) customs duties, taxes or penalties.

Article 30

The present Convention shall not apply to proceedings in respect of claims relating to the operation of seagoing vessels owned or operated by a Contracting State or to the carriage of cargoes and of passengers by such vessels or to the carriage of cargoes owned by a Contracting State and carried on board merchant vessels.

Article 31

Nothing in this Convention shall affect any immunities or privileges enjoyed by a Contracting State in respect of anything done or omitted to be done by, or in relation to, its armed forces when on the territory of another Contracting State.

Article 32

Nothing in the present Convention shall affect privileges and immunities relating to the exercise of the functions of diplomatic missions and consular posts and of persons connected with them.

Article 33

Nothing in the present Convention shall affect existing or future international agree­ments in special fields which relate to matters dealt with in the present Convention.

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Article 34

1. Any dispute which might arise between two or more Contracting States con-cerning the interpretation or application of the present Convention shall be submitted to the International Court of lustice on the application of one of the parties to the dispute or by special agreement unless the parties agree on a different method of peaceful settle­ment of the dispute.

2. However, proceedings may not be instituted before the International Court of Justice which relate to:

(a) a dispute concerning a question arising in proceedings instituted against a Con­tracting State before a court of another Contracting State, before the court has given a judgment which fulfills the condition provided for in paragraph I (b) of Article 20;

(b) a dispute concerning a question arising in proceedings instituted before a court of a Contracting State in accordance with paragraph 1 of Article 21, before the court has rendered a final decision in such proceedings.

Article 35

1. The present Convention shall apply only to proceedings introduced after its entry into force.

2. When a State has become Party to this Convention after it has entered into force, the Convention shall apply only to proceedings introduced after it has entered into force with respect to that State.

3. Nothing in this Convention shall apply to proceedings arising out of, or judg-ments based on, acts, omissions or facts prior to the date on which the present Conven­tion is opened for signature.

CHAPTER VI. FINAL PROVISIONS

Article 36

1. The present Convention shall be open to signature by the member States of the Council of Europe. It shall be subject to ratification or acceptance. Instruments of ratifi­cation or acceptance shall be deposited with the Secretary General of the Council of Europe.

2. The Convention shall enter into force three months after the date of the deposit of the third instrument of ratification or acceptance.

3. In respect of a signatory State ratifying or accepting subsequently, the Conven-tion shall enter into force three months after the date of the deposit of its instrument of ratification or acceptance.

Article 37

1. After the entry into force of the present Convention, the Committee of Minis-ters of the Council of Europe may, by a decision taken by a unanimous vote of the mem­bers casting a vote, invite any non-member State to accede thereto.

2. Such accession shall be effected by depositing with the Secretary General of the Council of Europe an instrument of accession which shall take effect three months after the date of its deposit.

3. However, if a State having already acceded to the Convention notifies the Secretary General of the Council of Europe of its objection to the accession of another non-member State, before the entry into force of this accession, the Convention shall not apply to the relations between these two States.

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Article 38

1. Any State may, at the time of signature or when depositing its instruments of ratification, acceptance or accession, specify the territory or territories to which the present Convention shall apply.

2. Any State may, when depositing its instrument of ratification, acceptance or accession or at any later date, by declaration addressed to the Secretary General of the Council of Europe, extend this Convention to any other territory or territories specified in the declaration and for whose international relations it is responsible or on whose behalf it is authorised to give undertakings.

3. Any declaration made in pursuance of the preceding paragraph may, in respect of any territory mentioned in such declaration, be withdrawn according to the procedure laid down in Article 40 of this Convention.

Article 39

No reservation is permitted to the present Convention.

Article 40

1. Any Contracting State may, in so far as it is concerned, denounce this Conven­tion by means of a notification addressed to the Secretary General of the Council of Europe.

2. Such denunciation shall take effect six months after the date of receipt by the Secretary General of such notification. This Convention shall, however, continue to apply to proceedings introduced before the date on which the denunciation takes effect, and to judgments given in such proceedings.

Article 41

The Secretary General of the Council of Europe shall notify the member States of the Council of Europe and any State which has acceded to this Convention of:

(a) any signature;

(b) any deposit of an instrument of ratification, acceptance or accession;

(e) any date of entry into force of this Convention in accordance with Articles 36 and 37 thereof;

(d) any notification received in pursuance of the provisions of paragraph 2 of Article 19;

(e) any communication received in pursuance of the provisions of paragraph 4 of Article 21;

(f) any notification received in pursuance of the provisions of paragraph 1 of Article 24;

(g) the withdrawal of any notification made in pursuance of the provisions of paragraph 4 of Article 24;

(h) any notification received in pursuance of the provisions of paragraph 2 of Article 28;

(i) any notification received in pursuance of the provisions of paragraph 3 of Article 37;

(j) any declaration received in pursuance of the provisions of Article 38;

(k) any notification received in pursuance of the provisions of Article 40 and the date on which denunciation takes effect.

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ANNEX

The grounds of jurisdiction referred to in paragraph 3, sub-paragraph (a), of Article 20, paragraph 2 of Article 24 and paragraph 3, sub-paragraph (b), of Article 25 are the following:

(a) the presence in the territory of the State of the forum of property belonging to the defendant, or the seizure by the plaintiff of property situated there, unless

the action is brought to assert proprietary or possessory rights in that property, or arises from another issue relating to such property; or the property constitutes the security for a debt which is the subject-matter of the action; (b) the nationality of the plaintiff; (c) the domicile, habitual residence or ordinary residence of the plaintiff within the

territory of the State of the forum unless the assumption of jurisdiction on such a ground is permitted by way of an exception made on account of the particular subject­matter of a class of contracts;

(d) the fact that the defendant carried on business within the territory of the State of the forum, unless the action arises from that business;

(e) a unilateral specification of the forum by the plaintiff, particularly in an invoice. A legal person shall be considered to have its domicile or habitual residence where it

has its seat, registered office or principal place of business.

ADDITIONAL PROTOCOL TO THE EUROPEAN CONVENTION ON STATE IMMUNITY

The member States of the Council of Europe, signatory to the present Protocol,

Having taken note of the European Convention on State Immunity ~ hereinafter referred to as "the Convention" ~ and in particular Articles 21 and 34 thereof;

Desiring to develop the work of harmonisation in the field covered by the Conven­tion by the addition of provisions concerning a European procedure for the settlement of disputes,

Have agreed as follows:

PART I

Article 1

1. Where a judgment has been given against a State Party to the Convention and that States does not give effect thereto, the party which seeks to invoke the judgment shall be entitled to have determined the question whether effect should be given to the judgment in conformity with Article 20 or Article 25 of the Convention, by instituting proceedings before either:

(a) the competent court of that State in application of Article 21 of the Conven­tion; or

(b) the European Tribunal constituted in conformity with the provisions of Part III of the present Protocol, provided that that State is a Party to the present Protocol and has to made the declaration referred to in Part IV thereof.

The choice between these two possibilities shall be final.

2. If the State intends to institute proceedings before its court in accordance with the provisions of paragraph 1 of Article 21 of the Convention it must give notice of its intention to do so to the party in whose favour the judgment has been given; the State may thereafter institute such proceedings before the European Tribunal. Once this

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period has elapsed, the party in whose favour the judgment has been given may no longer institute proceedings before the European Tribunal.

3. Save in so far as may be necessary for the application of Articles 20 and 25 of the Convention, the European Tribunal may not review the merits of the judgment.

PART II

Article 2

I. Any dispute which might arise between two or more States Parties to the present Protocol concerning the interpretation or application of the Convention shall be submitted, on the application of one of the parties to the dispute or by special agree­ment, to the European Tribunal constituted in conformity with the provisions of Part III of the present Protocol. The States Parties to the present Protocol undertake not to sub­mit such a dispute to a different mode of settlement.

2. If the dispute concerns a question arising in proceedings instituted before a court of one State Party to the Convention against another State Party to the Conven­tion, or a question arising in proceedings instituted before a court of a State Party to the Convention in accordance with Article 21 of the Convention, it may not be referred to the European Tribunal until the court has given a final decision in such proceedings.

3. Proceedings may not be instituted before the European Tribunal which relate to a dispute concerning a judgment which it has already determined or is required to deter­mine by virtue of Part I of this Protocol.

Article 3

Nothing in the present Protocol shall be interpreted as preventing the European Tribunal from determining any dispute which might arise between two or more States Parties to the Convention concerning the interpretation or application thereof and which might be submitted to it by special agreement, even if these Parties, or any of them, are not Parties to the present Protocol.

PART III

Article 4

1. There shall be established a European Tribunal in matters of State Immunity to determine cases brought before it in conformity with the provisions of Parts I and II of the present Protocol.

2. The European Tribunal shall consist of the members of the European Court of Human Rights and, in respect of each non-member State of the Council of Europe which has acceded to the present Protocol, a person possessing the qualifications required of members of that Court designated, with the agreement of the Committee of Ministers of the Council of Europe, by the government of that State for a period of nine years.

3. The President of the European Tribunal shall be the President of the European Court of Human Rights.

Article 5

1. Where proceedings are instituted before the European Tribunal in accordance with the provisions of Part I of the present Protocol, the European Tribunal shall consist of a Chamber composed of seven members. There shall sit as ex officio members of the Chamber the member of the European Tribunal who is a national of the State against which the judgment has been given and the member of the European Tribunal who is a

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national of the State of the forum, or, should there be no such member in one or the other case, a person designated by the government of the State concerned to sit in the capacity of a member of the Chamber. The names of the other five members shall be chosen by lot by the President of the European Tribunal in the presence of the Registrar.

2. Where proceedings are instituted before the European Tribunal in accordance with the provisions of Part II of the present Protocol, the Chamber shall be constituted in the manner provided for in the preceding paragraph. However, there shall sit as ex officio members of the Chamber the members of the European Tribunal who are nation­als of the States parties to the dispute or, should there be no such member, a person designated by the government of the State concerned to sit in the capacity of a member of the Chamber.

3. Where a case pending before a Chamber raises a serious question affecting the interpretation of the Convention or of the present Protocol, the Chamber may, at any time, relinquish jurisdiction in favour of the european Tribunal meeting in plenary session. The relinquishment of jurisdiction shall be obligatory where the resolution of such question might have a result inconsistent with a judgment previously delivered by a Chamber or by the European Tribunal meeting in plenary session. The relinquishment of jurisdiction shall be fmal. Reasons need not be given for the decision to relinquish jurisdiction.

Article 6

1. The European Tribunal shall decide any disputes as to whether the Tribunal has jurisdiction.

2. The hearings of the European Tribunal shall be public unless the Tribunal in exceptional circumstances decides otherwise.

3. The judgments of the European Tribunal, taken by a majority of the members present, are to be delivered in public session. Reasons shall be given for the judgment of the European Tribunal. If the judgment does not represent in whole or in part the un­animous opinion of the European Tribunal, any member shall be entitled to deliver a separate opinion.

4. The judgments of the European Tribunal shall be final and binding upon the parties.

Article 7

1. The European Tribunal shall draw up its own rules and fix its own procedure.

2. The Registry of the Ewopean Triubnal shall be provided by the Registrar of the European Court of Human Rights.

Article 8

1. The operating costs of the European Tribunal shall be borne by the Council of Europe. States non-members of the Council of Europe having acceded to the present Protocol shall contribute thereto in a manner to be decided by the Committee of Minis­ters after agreement with these States.

2. The members of the European Tribunal shall receive for each day of duty a compensation to be determined by the Committee of Ministers.

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PART IV

Article 9

1. Any State may, by notification addressed to the Secretary General of the Coun­cil of Europe at the moment of its signature of the present Protocol, or of the deposit of its instrument of ratification, acceptance or accession thereto, declare that it will only be bound by Parts II to V of the present Protocol.

2. Such a notification may be withdrawn at any time.

PART V

Article 10

1. The present Protocol shall be open to signature by the member States of the Council of Europe which have signed the Convention. It shall be subject to ratification or acceptance. Instruments of ratification or acceptance shall be deposited with the Secretary General of the Council of Europe.

2. The present Protocol shall enter into force three months after the date of the deposit of the fifth instrument of ratification or acceptance.

3. In respect of a signatory State ratifying or accepting subsequently, the Protocol shall enter into force three months after the date of the deposit of its instrument of rati­fication or acceptance.

4. A member State of the Council of Europe may not ratify or accept the present Protocol without having ratified or accepted the Convention.

Article 11

1. A State which has acceded to the Convention may accede to the present Pro­tocol has entered into force.

2. Such accession shall be effected by depositing with the Secretary General of the Council of Europe an instrument of accession which shall take effect three months after the date of its deposit.

Article 12

No reservation is permitted to the present Protocol.

Article 13

1. Any Contracting State may, in so far as it is concerned, denounce the present Protocol by means of a notification addressed to the Secretary General of the Council of Europe.

2. Such denunciation shall take effect six months after the date of receipt by the Secretary General of such notification. The Protocol shall, however, continue to apply to proceedings introduced in conformity with the provisions of the Protocol before the date on which such denunciation takes effect.

3. Denunciation of the Convention shall automatically entail denunciation of the present Protocol.

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Article 14

The Secretary General of the Council of Europe shall notify the member States of the Council and any State which has acceded to the Convention of:

(a) any signature of the present Protocol.

(b) any deposit of an instrument of ratification, acceptance or accession;

(c) any date of entry into force of the present Protocol in accordance with Articles 10 and 11 thereof;

(d) any notification received in pursuance of the provisions of Part IV and any with­drawal of any such notification;

(e) any notification received in pursuance of the provisions of Article 13 and the date on which such denunciation takes effect.

In witness whereof the undersigned, being duly authorised thereto, have signed the present Protocol.

Done at Basle, this 16th day of May 1972, in English and French, both texts being equally authoritative, in a single copy which shall remain deposited in the archives of the Council of Europe. The Secretary General of the Council of Europe shall transmit certi­fied copies to each of the signatory and acceding States.

RESOLUTION (72) 2 OF THE COMMITTEE OF MINISTERS OF THE COUNCIL OF EUROPE CONCERNING THE EUROPEAN CONVENTION ON STATE IM­MUNITY ADOPTED AT THE 206TH MEETING OF THE MINISTERS' DEPUTIES ON 18 JANUARY 1972

The Committee of Ministers of the Council of Europe,

Having taken note of the text of the European Convention on State Immunity;

Considering that one of the aims of this Convention is to ensure compliance with judgments given against a State,

Recommends the governments of those member States which shall become Parties to this Convention to establish, for the purpose of Article 21 of the Convention, a pro­cedure which shall be as expeditious and simple as possible.

APPENDIX II

THE UNITED STATES FOREIGN SOVEREIGN IMMUNITIES ACT OF 1976

AN ACT

To define the jurisdiction of United States courts in suits against foreign states, the circumstances in which foreign states are immune from suit and in which execution may not be levied on their property, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Foreign Sovereign Immunities Act of 1976".

Sec. 2. (a) That chapter 85 of title 28, United States Code, is amended by insert­ing immediately before section 1331 the following new section:

,,§ 1330. Actions against foreign states "(a) The district courts shall have original jurisdiction without regard to amount

in controversy of any nonjury civil action against a foreign state as defined in section 1603(a) of this title as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity either under sections 1605-1607 of this title or under any applicable international agreement.

"(b) Personal jurisdiction over a foreign state shall exist as to every claim for relief over which the district courts have jurisdiction under subsection (a) where service has been made under section 1608 of this title.

"(c) for purposes of subsection (b), an appearance by a foreign state does not confer personal jurisdiction with respect to any claim for relief not arising out of any transaction or occurrence enumerated in sections 1605-1607 of this title.".

(b) By inserting in the chapter analysis of that chapter before: "1331. Federal question; amount in controversy; costs."

the following new item: "1330. Action against foreign states".

Sec. 3. That section 1332 of title 28, United States Code, is amended by striking subsections (a) (2) and (3) and substituting in their place the following:

"(2) citizens of a State and citizens or subjects of a foreign state;

"(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and

"(4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States.".

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Sec. 4. (a) That title 28, United States Code, is amended by inserting after chapter 95 the following new chapter:

"CHAPTER 97. JURISDICTIONAL IMMUNITIES OF FOREIGN STATES

"Sec. "1602. Findings and declaration of purpose. "1603. Definitions. "1604. Immunity of a foreign state from jurisdiction. "1605. General exceptions to the jurisdictional immunity of a foreign state. "1606. Extent of liability. "1607. Counterclaims. "1608. Service; time to answer default. "1609. Immunity from attachment and execution of property of a foreign state. "1610. Exceptions to the immunity from attachment or execution. "1611. Certain types of property immune from execution.

,,§ 1602. Findings and declaration ofpurpou "The Congress finds that the determination by United States courts of the claims of

foreign states to immunity from the jurisdiction of such courts would serve the interests of justice and would protect the rights of both foreign states and litigants in United States courts. Under international law, states are not immune from the jurisdiction of foreign courts insofar as their commercial activities are concerned, and their commercial property may be levied upon for the satisfaction of judgments rendered against them in connection with their commercial activities. Claims of foreign states to immunity should henceforth be decided by courts of the United States and of the States in conformity with the principles set forth in this chapter.

"§ 1603. Definitions "For purposes of this chapter:

"(a) A 'foreign state', except as used in section 1608 of this title, includes a politi­cal subdivision of a foreign state or an agency or instrumentality of a foreign state as defined in subsection (b).

"(b) An 'agency or instrumentality of a foreign state' means any entity:

"(1) which is a separate legal person, corporate or otherwise, and "(2) which is an organ of a foreign state or political subdivision thereof, or a

majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and

"(3) which is neither a citizen of a State of the United States as defined in section 1332 (c) and (d) of this title, nor created under the laws of any third country.

"(c) The 'United States' includes all territory and waters, continental or insular, subject to the jurisdiction of the United States.

"(d) A 'commercial activity' means either a regular course of commercial conduct or a particular commercial transaction of act. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose.

"(e) A 'commercial activity carried on in the United States by a foreign state' means commercial activity carried on by such state and having substantial contact with the United States.

,,§ 1604. Immunity of a foreign state from jurisdiction

"Subject to existing international agreements to which the United States is a party at the time of enactment of this act a foreign state shall be immune from the jurisdiction of

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the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter.

"§ 1605. General exceptions to the jurisdictional immunity of a foreign state "(a) A foreign state shall not be immune from the jurisdiction of courts of the

United States in any case:

"(1) in which the foreign state has waived its immunity either explicitly or by im­plication, notwithstanding any withdrawal of the waiver which the foreign state may purport to effect except in accordance with the terms of the waiver;

"(2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in con­nection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States;

"(3) in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state; or that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instru­mentality is engaged in a commercial activity in the United States;

"(4) in which rights in property in the United States acquired by succession or gift or rights in immovable property situated in the United States are in issue; or

"(5) not otherwise encompassed in paragraph (2) above, in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment; except this paragraph shall not apply to:

"(A) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused, or

"(B) any claim arising out of malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.

"(b) A foreign sate shall not be immune from the jurisdiction of the courts of the United States in any case in which a suit in admiralty is brought to enforce a maritime lien against a vessel or cargo of the foreign state, which maritime lien is based upon a commercial activity of the foreign state: Provided, That:

"(1) notice of the suit is given by delivery of a copy of the summons and of the compliant to the person, or his agent, having possession of the vessel or cargo against which the maritime lien is asserted; but such notice shall not be deemed to have been delivered, nor may it thereafter be delivered, if the vessel or cargo is arrested pursuant to process obtained on behalf of the party bringing the suit - unless the party was unaware that the vessel or cargo of a foreign state was involved, in which event the service of pro­cess of arrest shall be deemed to constitute valid delivery of such notice; and

"(2) notice to the foreign state of the commencement of suit as provided in section 1608 of this title is initiated within ten days either of the delivery of notice as provided in subsection (b) (1) of this section or, in the case of a party who was unaware that the vessel or cargo of a foreign state was involved, of the date such party determined the existence of the foreign state's interest.

Whenever notice is delivered under subsection (b) (1) of this section, the maritime lien shall thereafter be deemed to be an in personam claim against the foreign state which at that time owns the vessel or cargo involved: Provided, That a court may not award judg-

188

ment against the foreign state in an amount greater than the value of the vessel or cargo upon which the maritime lien arose, such value to be determined as of the time notice is served under subsection (b)(1) of this section.

"§ 1606. Extent of liability "As to any claim for relief with respect to which a foreign state is not entitled to

immunity under section 1605 or 1607 of this chapter, the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances; but a foreign state except for an agency or instrumentality thereof shall not be liable for punitive damages; if, however, in any case wherein death was caused, the law of the place where the action or omission occurred provides, or has been construed to provide, for damages only punitive in nature, the foreign state shall be liable for actual or compen­satory damages measured by the pecuniary injuries resulting from such death which were incurred by the persons for whose benefit the action was brought.

"§ 1607. Counterclaims "In any action brought by a foreign state, or in which a foreign state intervenes, in a

court of the United States or of a State, the foreign state shall not be accorded immunity with respect to any counterclaim;

"(a) for which a foreign state would not be entitled to immunity under section 1605 of this chapter had such claim been brought in a separate action against the foreign state; or

"(b) arising out of the transaction or occurrence that is the subject matter of the claim of the foreign state; or

"(c) to the extent that the counterclaim does not seek relief exceeding in amount of differing in kind from that sought by the foreign state.

"§ 1608. Service; time to answer; default "(a) Service in the courts of the United States and of the States shall be made upon

a foreign state or political subdivision of a foreign state:

"(1) by delivery of a copy of the summons and complaint in accordance with any special arrangement for service between the plaintiff and the foreign state or political subdivision; or

"(2) if no special arrangement exists, by delivery of a copy of the summons and complaint in accordance with an applicable international convention on service of judicial documents; or

"(3) if service cannot be made under paragraphs (1) or (2), by sending a copy of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the head of the ministry of foreign affairs of the foreign state concerned, or

"(4) if service cannot be made within 30 days under paragraph (3), by sending two copies of the summons and complaint and a notice of suit, together with a translation of each into the official language of the foreign state, by any form of mail requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the Secretary of State in Washington, District of Columbia, to the attention of the Director of Special Consular Services - and the Secretary shall transmit one copy of the papers through diplomatic channels to the foreign state and shall send to the clerk of the court a certi­fied copy of the diplomatic note indicating when the papers were transmitted.

As used in this subsection, a 'notice of suit' shall mean a notice addressed to a foreign state and in a form prescribed by the Secretary of State by regulation.

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"(b) Service in the courts of the United States and of the States shall be made upon an agency or instrumentality of a foreign state:

"0) by delivery of a copy of the summons and complaint in accordance with any special arrangement for service between the plaintiff and the agency or instrumentality; or

"(2) if no special arrangement exists, by delivery of a copy of the summons and complaint either to an officer, a managing or general agent, or to any other agent autho­rized by appointment or by law to receive service of process in the United States; or in accordance with an applicable international convention on service of judicial documents; or

"(3) if service cannot be made under paragraphs 0) or (2), and if reasonably cal­culated to give actual notice, by delivery of a copy of the summons and complaint, to­gether with a translation of each into the official language of the foreign state:

(A) as directed by an authority of the foreign state or political subdivision in response to a letter rogatory or request or

(B) by any form of mail requiring a signed receipt, to be addressed and dis­patched by the clerk of the court to the agency or instrumentality to be served, or

(C) as directed by order of the court consistent with the law of the place where service is to be made. "(c) Service shall be deemed to have been made:

"0) in the case of service under subsection (a)(4), as of the date of transmittal indicated in the certified copy of the diplomatic note; and

"(2) in any other case ounder this section, as of the date of receipt indicated in the sertification, signed and returned postal receipt, or other proof of service applicable to the method of service employed.

"(d) In any action brought in a court of the United States or of a State, a foreign state, a political subdivision thereof, or an agency or instrumentality of a foreign state shall serve an answer or other responsive pleading to the complaint within sixty days after service has been made under this section.

"(e) No judgment by default shall be entered by a court of the United States or of a State against a foreign state, a political subdivision thereof, or an agency or instrumen­tality of a foreign state, unless the claimant establishes his claim or right to relief by evi­dence satisfactory to the court. A copy of any such default judgment shall be sent to the foreign state or political subdivision in the manner prescribed for service in this section .

.. § 1609. Immunity from attachment and execution of property of a foreign state "Subject to existing international agreements to which the United States is a party at

the time of enactment of this Act the property in the United States of a foreign state shall be immune from attachment, arrest and execution except as provided in sections 1610 and 1611 of this chapter.

"§ 1610. Exceptions to the immunity from attachment or execution "(a) The property in the United States of a foreign state, as defined in section

1603 (a) of this chapter, used for a commercial activity in the United States, shall not be immune from attachment in aid of execution, or from execution, upon a judgment entered by a court of the United States or of a State after the effective date of this Act, if:

"(1) the foreign state has waived its immunity from attachment in aid of execution or from execution either explicitly or by implication, notwithstanding any withdrawal of the waiver the foreign state may purport to effect except in accordance with the terms of the waiver, or

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"(2) the property is or was used for the commercial activity upon which the claim is based, or

"(3) the execution relates to a judgment establishing rights in property which has been taken in violation of international law or which has been exchanged for property taken in violation of international law, or

"(4) the execution relates to a judgment establishing rights in property: "(A) which is acquired by succession or gift, or "(B) which is immovable and situated in the United States: Provided, That

such property is not used for purposes of maintaining a diplomatic or consular mission or the residence of the Chief of such mission, or "(5) the property consists of any contractual obligation or any proceeds from such

a contractual obligation to indemnify or hold harmless the foreign state or its employees under a policy of automobile or other liability or casualty insurance covering the claim which merged into the judgment.

"(b) In addition to subsection (a), any property in the United States of an agency or instrumentality of a foreign state engaged in commercial activity in the United States shall not be immune from attachment in aid of execution, or from execution, upon a judgment entered by a court of the United States or of a State after the effective date of this Act, if:

"(1) the agency or instrumentality has waived its immunity from attachment in aid of execution or from execution either explicitly or implicitly, notwithstanding any with­drawal of the waiver the agency or instrumentality may purport to effect except in accordance with the terms of the waiver, or

"(2) the judgment relates to a claim for which the agency or instrumentality is not immune by virtue of section 1605 (a) (2), (3), or (5), or 1605 (b) of this chapter, regard­less of whether the property is or was used for the activity upon which the claim is based.

"(c) No attachment or execution referred to in subsections (a) and (b) of this sec­tion shall be permitted until the court has ordered such attachment and execution after having determined that a reasonable period of time has elapsed following the entry of judgment and the giving of any notice required under section 1608 (e) of this chapter.

"(d) The property of a foreign state, as defined in section 1603 (a) of this chapter, used for a commercial activity in the United States, shall not be immune from attach­ment prior to the entry of judgment in any action brought in a court of the United States or of a State, or prior to the elapse of the period of time provided in subsection (c) of this section, if:

"(1) the foreign state has explicitly waived its immunity from attachment prior to judgment, notwithstanding any withdrawal of the waiver the foreign state may purport to effect except in accordance with the terms of the waiver, and

"(2) the purpose of the attachment is to secure satisfaction of a judgment that has been or may ultimately be entered against the foreign state, and not to obtain jurisdic­tion.

"§ 1611. Certain typerofproperty immune from execution "(a) Notwithstanding the provisions of section 1610 of this chapter, the property

of those organizations designated by the President as being entitled to enjoy the privi­leges, exemptions, and immunities provided by the International Organizations Immu­nities Act shall not be subject to attachment or any other judicial process impeding the disbursement of funds to, or on the order of, a foreign state as the result of an action brought in the courts of the United States or of the States.

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"(b) Notwithstanding the provisions of section 1610 of this chapter, the property of a foreign state shall be immune from attachment and from execution, if:

"(1) the property is that of a foreign central bank or monetary authority held for its own account, unless such bank or authority, or its parent foreign government, has explicitly waived its immunity from attachment in aid of execution, or from execution, notwithstanding any withdrawal of the waiver which the bank, authority or government may purport to effect except in accordance with the terms of the waiver; or

"(2) the property is, or is intended to be used in connection with a military activity and

"(A) is of a military character, or "(B) is under the control of a military authority or defense agency."

(b) That the analysis of "Part IV. Jurisdiction and Venue" of title 28, United States Code, is amended by inserting after:

"95. Customs Court.",

the following new item:

"97. Jurisdictional Immunities of Foreign States.".

Sec. 5. That section 1391 of title 28, United States Code, is amended by adding at the end thereof the following new subsection:

"(j) A civil action against a foreign state as defined in section 1603 (a) of this title may be brought:

"(1) in any judicial district in which a substantial part of the events or omissions given rise to the claim occurred, or a substantial part of property that is the subject of the action situated;

"(2) in any judicial district in which the vessel or cargo of a foreign state is situated, if the claim is asserted under section 1605 (b) of this title;

"(3) in any judicial district in which the agency or instrumentality is licensed to do business or is doing business, if the action is brought against an agency or instrumentality of a foreign state as defined in section 1603 (b of this title; or

"(4) in the United States District Court for the District of Columbia if the action is brought against a foreign state or political subdivision thereof.".

Sec. 6. That section 1441 of title 28, United States Code, is amended by adding at the end thereof the following new subsection:

"(d) Any civil action brought in a State court against a foreign state as defined in section 1603 (a) of this title may be removed by the foreign state to the district court of the United States for the district and division embracing the place where such action is pending. Upon removal the action shall be tried by the court without jury. Where removal is based upon this subsection, the time limitations of section 1446 (b) of this chapter may be enlarged at any time for cause shown.".

Sec. 7. If any provision of this Act or the application thereof to any foreign state is held invalid, the invalidity does not affect other provisions or applications of the Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.

Sec. 8. This act shall take effect ninety days after the date of its enactment.

Approved October 21,1976.

APPENDIX III

THE UNITED KINGDOM STATE IMMUNITY ACT 1978

An Act to make new provision with respect to proceedings in the United Kingdom by or against other States; to provide for the effect of judgments given against the United Kingdom in the courts of States parties to the European Convention on State Immunity; to make new provision with respect to the immunities and privileges of heads of State; and for connected purposes.

[20th July 1978]

Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

PART I

PROCEEDINGS IN UNITED KINGDOM BY OR AGAINST OTHER STATES

Immunity from jurisdiction

1. (1) A State is immune from the jurisdiction of the courts of the United King-dom except as provided in the following provisions of this Part of this Act.

(2) A court shall give effect to the immunity conferred by this section even though the State does not appear in the proceedings in question.

Exceptions from immunity

2. (1) A State is not immune as respects proceedings in respect of which it has submitted to the jurisdiction of the courts of the United Kingdom.

(2) A State may submit after the dispute giving rise to the proceedings has arisen or by a prior written agreement; but a provision in any agreement that it is to be gov­erned by the law of the United Kingdom is not to be regarded as a submission.

(3) A State is deemed to have submitted:

(a) if it has instituted the proceedings; or

(b) subject to subsections (4) and (5) below, if it has intervened or taken any step in the proceedings.

(4) Subsection (3 )(b) above does not apply to intervention or any step taken for the purpose only of:

(a) claiming immunity; or

(b) asserting an interest in property in circumstances such that the State would have been entitled to immunity if the proceedings had been brought against it.

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(5) Subsection (3)(b) above does not apply to any step taken by the State in ignorance of facts entitling it to immunity if those facts could not reasonably have been ascertained and immunity is claimed as soon as reasonably practicable.

(6) A submission in respect of any proceedings extends to any appeal but not to any counter-claim unless it arises out of the same legal relationship or facts as the claim.

(7) The head of a State's diplomatic mission in the United Kingdom, or the person for the time being performing his function, shall be deemed to have authority to submit on behalf of the State in respect of any proceedings; and any person who has entered into a contract on behalf of and with the authority of a State shall be deemed to have authority to submit on its behalf in respect of proceedings arising out of the contract.

3. (1) A State is not immune as respects proceedings relating to: (a) a commercial transaction entered into by the State; or (b) an obligation of the State which by virtue of a contract (whether a commercial

transaction or not) falls to be performed wholly or partly in the United Kingdom.

(2) This section does not apply if the parties to the dispute are States or have otherwise agreed in writing; and subsection (1)(b) above does not apply if the contract (not being a commercial transaction) was made in the territory of the State concerned and the obligation in question is governed by its administrative law.

(3) In this section "commercial transaction" means: (a) any contract for the supply of goods or services;

(b) any loan or other transaction for the provisic n of finance and any guarantee or indemnity in respect of any such transaction or of any other financial obligation; and

(e) any other transaction or activity (whether of a commercial, industrial, finan­cial, professional or other similar character) into which a State enters or in which it engages otherwise than in the exercise of sovereign authority;

but neither paragraph of subsection (1) above applies to a contract of employment between a State and an individual.

4. (1) A State is not immune as respects proceedings relating to a contract of employment between the State and an individual where the contract was made in the United Kingdom or the work is to be wholly or partly performed there.

(2) Subject to subsections (3) and (4) below, this section does not apply if:

(a) at the time when the proceedings are brought the individual is a national of the State concerned; or

(b) at the time when the contract was made the individual was neither a national of the United Kingdom nor habitually resident there; or

(e) the parties to the contract have otherwise agreed in writing.

(3) Where the work is for an office, agency or establishment maintained by the State in the United Kingdom for commercial purposes, subsection (2)(a) and (b) above do not exclude the application of this section unless the individual was, at the time when the contract was made, habitually resident in that State.

(4) Subsection (2)(e) above does not exclude the application of this section where the law of the United Kingdom requires the proceedings to be brought before a court of the United Kingdom.

(5) In subsection (2)(b) above "national of the United Kingdom" means a citizen of the United Kingdom and Colonies, a person who is a British subject by virtue of sec­tion 2, 13 or 16 of the British Nationality Act 1948 or by virtue of the British National­ity Act 1965, a British protected person within the meaning of the said Act of 1948 or a citizen of Southern Rhodesia.

195

(6) In this section "proceedings relating to a contract of employment" includes proceedings between the parties to such a contract in respect of any statutory rights or duties to which they are entitled or su bject as employer or employee.

5. A State is not immune as respects proceedings in respect of:

(a) death or personal injury; or

(b) damage to or loss of tangible property,

caused by an act or omission in the United Kingdom.

6. (1) A State is not immune as respects proceedings relating to:

(a) any interest of the State in, or its possession or use of, immovable property in the United Kingdom; or

(b) any obligation of the State arising out of its interest in, or its possession or use of, any such property.

(2) A State is not immune as respects proceedings relating to any interest of the State in movable or immovable property, being an interest arising by way of succession, gift or bona vacantia.

(3) The fact that a State has or claims an interest in any property shall not pre­clude any court from exercising in respect of it any jurisdiction relating to the estates of deceased persons or persons of unsound mind or to insolvency, the winding up of com­panies or the administration of trusts.

(4) A court may entertain proceedings against a person other than a State not­withstanding that the proceedings relate to property:

(a) which is in the possession or control of a State; or

(b) in which a State claims an interest,

if the State would not have been immune had the proceedings been brought against it or, in a case within paragraph (b) above, if the claim is neither admitted nor supported by prima facie evidence.

7. A State is not immune as respects proceedings relating to:

(a) any patent, trade-mark, design or plant breeders' rights belonging to the State and registered or protected in the United Kingdom or for which the State has applied in the United Kingdom;

(b) an alleged infringement by the State in the United Kingdom of any patent, trade-mark, design, plant breeders' rights or copyright; or

(c) the right to use a trade or business name in the United Kingdom.

8. (1) A State is not immune as respects proceedings relating to its membership of a body corporate, an unincorporated body or a partnership which:

(a) has members other than States; and

(b) is incorporated or constituted under the law of the United Kingdom or is con­trolled from or has its principal place of business in the United Kingdom,

being proceedings arising between the State and the body or its other mem bers or, as the case may be, between the State and the other partners.

(2) This section does not apply if provision to the contrary has been made by an agreement in writing between the parties to the dispute or by the constitution or other instrument establishing or regulating the body or partnership in question.

9. (1) Where a State has agreed in writing to submit a dispute which has arisen, or may arise, to arbitration, the State is not immune as respects proceedings in the courts of the United Kingdom which relate to the arbitration.

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(2) This section has effect subject to any contrary provlSlon in the arbitration agreement and does not apply to any arbitration agreement between States.

10. (1) This section applies to:

(a) Admiralty proceedings; and (b) proceedings on any claim which could be made the subject of Admiralty pro-

ceedings.

(2) A State is not immune as respects:

(a) an action in rem against a ship belonging to that State; or

(b) an action in personam for enforcing a claim in connection with such a ship,

if, at the time when the cause of action arose, the ship was in use or intended for use for commercial purposes.

(3) Where an action in rem is brought against a ship belonging to a State for en­forcing a claim in connection with another ship belonging to that State, subsection (2)(a) above does not apply as respects the first-mentioned ship unless, at the time when the cause of action relating to the other ship arose, both ships were in use or intended for use for commercial purposes.

(4) A State is not immune as respects:

(a) an action in rem against a cargo belonging to that State if both the cargo and the ship carrying it were, at the time when the cause of action arose, in use or intended for use for commercial purposes; or

(b) an action in personam for enforcing a claim ill connection with such a cargo if the ship carrying it was then in use or intended for use as aforesaid.

(5) In the foregoing provisions references to a ship or cargo belonging to a State include references to a ship or cargo in its possession or control or in which it claims an interest; and, subject to subsection (4) above, subsection (2) above implies to property other than a ship as it applies to a ship.

(6) Sections 3 to 5 above do not apply to proceedings of the kind described in subsection (1) above if the State in question is a party to the Brussels Convention and the claim relates to the operation ofa ship owned or operated by that State, the carriage of cargo or passengers on any such ship or the carriage of cargo owned by that State on any other ship.

11. A State is not immune as respects proceedings relating to its liability for:

(a) value added tax, any duty of customs or excise or any agricultural levy ; or

(b) rates in respect of premises occupied by it for commercial purposes.

Procedure

12. (1) Any writ or other document required to be served for instituting pro­ceedings against a State shall be served by being transmitted through the Foreign and Commonwealth Office to the Ministry of Foreign Affairs of the State and service shall be deemed to have been effected when the writ or document is received at the Ministry.

(2) Any time for entering an appearance (whether prescribed by rules of court or otherwise) shall begin to run two months after the date on which the writ or document is received as aforesaid.

(3) A State which appears in proceedings cannot thereafter object that subsection (1) above has not been complied with in the case of those proceedings.

(4) No judgment in default of appearance shall be given against a State except on

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proof that subsection (1) above has been complied with and that the time for entering an appearance as extended by subsection (2) above has expired.

(5) A copy of any judgment given against a State in default of appearance shall be transmitted through the Foreign and Commonwealth Office to the Ministry of Foreign Affairs of that State and any time for applying to have the judgment set aside (whether prescribed by rules of court or otherwise) shall begin to run two months after the date on which the copy of the judgment is received at the Ministry.

(6) Subsection (1) above does not prevent the service of a writ or other document in any manner to which the State has agreed and subsections (2) and (4) above do not apply where service is effected in any such manner.

(7) This section shall not be construed as applying to proceedings against a State by way of counter-claim or to an action in rem; and subsection (1) above shall not be construed as affecting any rules of court whereby leave is required for the service of pro­cess ou tside the jurisdiction.

13. (1) No penalty by way of committal or fine shall be imposed in respect of any failure or refusal by or on behalf of a State to disclose or produce any document or other information for the purposes of proceedings to which it is a party.

(2) Subject to subsections (3) and (4) above: (a) relief shall not be given against a State by way of injunction or order for

specific performance or for the recovery of land or other property; and

(b) the property of a State shall not be subject to any process for the enforcement of a judgment or arbitration award or, in an action in rem, for its arrest, detention or sale.

(3) Subsection (2) above does not prevent the giving of any relief or the issue of any process with the written consent of the State concerned; and any such consent (which may be contained in a prior agreement) may be expressed so as to apply to a limited extent or generally; but a provision merely submitting to the jurisdiction of the courts is not to be regarded as a consent for the purposes of this subsection.

(4) Subsection (2)(b) above does not prevent the issue of any process in respect of property which is for the time being in use or intended for use for commercial pur­poses; but, in a case not falling within section 10 above, this subsection applies to prop­erty of a State party to the European Convention on State Immunity only if

(a) the process is for enforcing a judgment which is final within the meaning of section 18(1)(b) below and the State has made a declaration under Article 24 of the Convention; or

(b) the process is for enforcing an arbitration award.

(5) The head of a State's diplomatic mission in the United Kingdom, or the person for the time being performing his functions, shall be deemed to have authority to give on behalf of the State any such consent as is mentioned in subsection (3) above and, for the purposes of subsection (4) above, his certificate to the effect that any property is not in use or intended for use by or on behalf of the State for commercial purposes shall be accepted as sufficient evidence of that fact unless the contrary is proved.

(6) In the application of this section to Scotland:

(a) the reference to "injunction" shall be construed as a reference to "interdict";

(b) for paragraph (b) of subsection (2) above there shall be substituted the follow-ing paragraph:

"(b) the property of a State shall not be subject to any diligence for enforcing a judgment or order of a court or a decree arbitral or, in an action in rem, to arrest­ment or sale"; and

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(c) any reference to "process" shall be construed as a reference to "diligence", any reference to "the issue of any process" as a reference to "the doing of diligence" and the reference in subsection (4)(b) above to "an arbitration award" as a reference to "a decree arbitral".

Supplementary provisions

14. (1) The immunities and privileges conferred by this Part of this Act apply to any foreign or commonwealth State other than the United Kingdom; and references to a State include references to:

(a) the sovereign or other head of that State in his public capacity;

(b) the government of that State; and

(c) any department of that government,

but not to any entity (hereafter referred to as a "separate entity") which is distinct from the executive organs of the government of the State and capable of suing or being sued.

(2) A separate entity is immune from the jurisdiction of the courts of the United Kingdom if, and only if:

(a) the proceedings relate to anything done by it in the exercise of sovereign authority; and

(b) the circumstances are such that a State (or, in the case of proceedings to which section 10 above applies, a State which is not a party to the Brussels Convention) would have been so immune.

(3) If a separate entity (not being a State's central bank or other monetary author­ity) submits to the jurisdiction in respect of proceedings in the case of which it is en­titled to immunity by virtue of subsection (2) above, subsections (1) to (4) of section 13 above shall apply to it in respect of those procedures as if references to a State were references to that entity.

(4) Property of a State's central bank or other monetary authority shall not be regarded for the purposes of subsection (4) of section 13 above as in use or intended for use for commercial purposes; and where any such bank or authority is a separate entity subsections (1) to (3) of that section shall apply to it as if references to a State were references to the bank or authority.

(5) Section 12 above applies to proceedings against the constituent territories of a federal State; and Her Majesty may by Order in Council provide for the other provisions of this Part of this Act to apply to any such constituent territory specified in the Order as they apply to a State.

(6) Where the provisions of this Part of this Act do not apply to a constituent territory by virtue of any such Order subsections (2) and (3) above shall apply to it as if it were a separate entity.

15. (1) If it appears to Her Majesty that the immunities and privileges conferred by this Part of this Act in relation to any State:

(a) exceed those accorded by the law of that State in relation to the United King­dom;or

(b) are less than those required by any treaty, convention or other international agreement to which that State and the United Kingdom are parties,

Her Majesty may by Order in Council provide for restricting or, as the case may be, extending those immunities and privileges to such extent as appears to Her Majesty to be appropriate.

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(2) Any statutory instrument containing an Order under this section shall be sub­ject to annubnent in pursuance of a resolution of either House of Parliament.

16. (1) This Part of this Act does not affect any immunity or privilege conferred by the Diplomatic Privileges Act 1964 or the Consular Relations Act 1968; and:

(a) section 4 above does not apply to proceedings concerning the employment of the members of a mission within the meaning of the Convention scheduled to the said Act of 1964 or of the members of a consular post within the meaning of the Convention scheduled to the said Act of 1968;

(b) section 6(1) above does not apply to proceedings concerning a State's title to or its possession of property used for the purposes of a diplomatic mission.

(2) This Part of this Act does not apply to proceedings relating to anything done by or in relation to the armed forces of a State while present in the United Kingdom and, in particular, has effect subject to the Visiting Forces Act 1952.

(3) This Part of this Act does not apply to proceedings to which section 17 (6) of the Nuclear Installations Act 1965 applies.

(4) This Part of this Act does not apply to criminal proceedings.

(5) This Part of this Act does not apply to any proceedings relating to taxation other than those mentioned in section 11 above.

17. (1) In this Part of this Act:

"the Brussels Convention" means the International Convention for the Uni­fication of Certain Rules Concerning the Immunity of State-Owned Ships, signed in Brussels on 10th April 1926;

"commercial purposes" means purposes of such transactions or activities as are mentioned in section 3(3) above;

"ship" includes hovercraft.

(2) In sections 2(2) and 13(3) above references to an agreement include references to a treaty, convention or other international agreement.

(3) For the purposes of sections 3 to 8 above the terriroty of the United Kingdom shall be deemed to include any dependent territory in respect of which the United King­dom is a party to the European Convention on State Immunity.

(4) In sections 3(1), 4(1), 5 and 16(2) above references to the United Kingdom in­clude references to its territorial waters and any area designated under section 1(7) of the Continental Shelf Act 1964.

(5) In relation to Scotland in this Part of this Act "action in rem" means such an action only in relation to Admiralty proceedings.

PART II

JUDGMENTS AGAINST UNITED KINGDOM IN CONVENTION STATES

18. (1) This section applies to any judgment given against the United Kingdom by a court in another State party to the European Convention on State Immunity, being a judgment:

(a) given in proceedings in which the United Kingdom was not entitled to immu­nity by virtue of provisions corresponding to those of sections 2 to 11 above; and

(b) which is final, that is to say, which is not or is no longer subject to appeal or, if given in default of appearance, liable to be set aside.

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(2) Subject to section 19 below, a judgment to which this section applies shall be recognised in any court in the United Kingdom as conclusive between the parties thereto in all proceedings founded on the same cause of action and may be relied on by way of defence or counter-claim in such proceedings.

(3) Subsection (2) above (but not section 19 below) shall have effect also in rela­tion to any settlement entered into by the United Kingdom before a court in another State party to the Convention which under the law of that State is treated as equivalent to a judgment.

(4) In this section references to a court in a State party to the Convention include references to a court in any territory in respect of which it is a party.

19. (1) A court need not give effect to section 18 above in the case of a judg­ment:

(0) if to do so would be manifestly contrary to public policy or if any party to the proceedings in which the judgment was given had no adequate opportunity to present his case; or

(b) if the judgment was given without provisions corresponding to those of section 12 above having been complied with and the United Kingdom has not entered an appear­ance or applied to have the judgment set aside.

(2) A court need not give effect to section 18 above in the case of a judgment:

(0) if proceedings between the same parties, based on the same facts and having the same purpose:

(i) are pending before a court in the United Kingdom and were the first to be instituted; or

(li) are pending before a court in another State party to the Convention, were the first to be instituted and may result in a judgment to which that section will apply; or

(b) if the result of the judgment is inconsistent with the result of another judg­ment given in proceedings between the same parties and:

(i) the other judgment is by a court in the United Kingdom and either those pro­ceedings were the first to be instituted or the judgment of that court was given before the first-mentioned judgment became final within the meaning of sub­section (1)(b) of section 18 above; or

(ii) the other judgment is by a court in another State party to the Convention and that section has already become applicable to it.

(3) Where the judgment was given against the United Kingdom in proceedings in respect of which the United Kingdom was not entitled to immunity by virtue of a provi­sion corresponding to section 6(2) above, a court need not give effect to section 18 above in respect of the judgment if the court that gave the judgment:

(0) would not have had jurisdiction in the matter if it had applied rules of jurisdic­tion corresponding to those applicable to such matters in the United Kingdom; or

(b) applied a law other than that indicated by the United Kingdom rules of private international law and would have reached a different conclusion if it had applied the law so indicated.

(4) In subseciton (2) above references to a court in the United Kingdom include references to a court in any dependent territory in respect of which the United Kingdom is a party to the Convention, and references to a court in another State party to the Con­vention include references to a court in any territory in respect of which it is a party.

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PART III

MISCELLANEOUS AND SUPPLEMENTARY

20. (1) Subject to the provisions of this section and to any necessary modifica-tions, the Diplomatic Privileges Act 1964 shall apply to:

(a) a sovereign or other head of State; (b) members of his family forming part of his household; and

(e) his private servants, as it applies to the head of a diplomatic mission, to members of his family forming part of his household and to his private servants.

(2) The immunities and privileges confereed by virtue of subsection (1)(a) and (b) above shall not be subject to the restrictions by reference to nationality or residence mentioned in Article 37(1) or 38 in Schedule 1 to the said Act of 1964.

(3) Subject to any direction to the contrary by the Secretary of State, a person on whom immunities and privilees are conferred by virtue of subsection (1) above shall be entitled to the exemption conferred by section 8(3) of the Immigration Act 1971.

(4) Except as respects value added tax and duties of customs or excise, this sec­tion does not affect any question whether a person is exempt from, or immune as respects proceedings relating to, taxation.

(5) This section applies to the sovereign or other head of any State on which im­munities and privileges are conferred by Part I of this Act and is without prejudice to the application of that Part to any such sovereign or head of State in his public capacity.

21. A certificate by or on behalf of the Secretary of State shall be conclusive evi­dence on any question:

(a) whether any country is a State for the purposes of Part I of this Act, whether any territory is a constituent territory of a federal State for those purposes or as to the person or persons to be regarded for those purposes as the head or government of a State;

(b) whether a State is a party to the Brussels Convention mentioned in Part I of this Act;

(e) whether a State is a party to the European Convention on State Immunity, whether it had made a declaration under Article 24 of that Convention or as to the territories in respect of which the United Kingdom or any other State is a party;

(d) whether, and if so when, a document has been served or received as mentioned in section 12(1) or (5) above.

22. (1) In this Act "court" includes any tribunal or body exercising judicial func· tions; and references to the courts or law of the United Kingdom include referrences to the courts or law of any part of the United Kingdom.

(2) In this Act references to entry of appearance and judgments in default of appearance include references to any corresponding procedures.

(3) In this Act "the European Convention on State Immunity" means the Conven-tion of that name signed in BasIe on 16th May 1972.

(4) In this Act "dependent territory" means:

(a) any of the Channel Islands;

(b) the Isle of Man;

(e) any colony other than one for whose external relations a country other than the United Kingdom is responsible; or

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(d) any country or territory outside Her Majesty's dominions in which Her Majes­ty has jurisdiction in right of the government of the United Kingdom.

(5) Any power conferred by this Act to make an Order in Council includes power to vary or revoke a previous Order.

23. (1) This Act may be cited as the State Immunity Act 1978.

(2) Section 13 of the Administration of Justice (Miscellaneous Provisions) Act 1938 and section 7 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 (which become unnecessary in consequence of Part I of this Act) are hereby repealed.

(3) Subject to subsection (4) below, Parts I and II of this Act do not apply to pro­ceedings in respect of matters that occurred before the date of the coming into force of this Act and, in particular:

(a) sections 2(2) and 13(3) do not apply to any prior agreement, and

(b) sections 3, 4 and 9 do not apply to any transaction, contract or arbitration agreement,

entered into before that date.

(4) Section 12 above applies to any proceedings instituted after the coming into force of this Act.

(5) This Act shall come into force on such date as may be specified by an order made by the Lord Chancellor by statutory instrument.

(6) This Act extends to Northern Ireland.

(7) Her Majesty may by Order in Council extend any of the provisions of this Act, with or without modification, to any dependent territory.

APPENDIX IV

THE SINGAPORE STATE IMMUNITY ACT 1979

An Act to make provisions with respect to proceedings in Singapore by or against other States, and for purposes connected therewith.

[26 October 1979)

PART I

PRELIMINARY

1. (1) This Act may be cited as the State Immunity Act, 1979.

(2) Subject to subsection (3), Part II does not apply to proceedings in respect of matters that occurred before the commencement of this Act and, in particular:

(a) subsection (2) of section 4 and subsection (3) of section 15 do not apply to any prior agreement; and

(b) sections 5, 6 and 11 do not apply to any transaction, contract or arbitration agreement, entered into before that date.

(3) Section 14 applies to any proceedings instituted after the commencement of this Act.

2. (1) In this Act: "commercial purposes" means purposes of such transactions or activities as are men­

tioned in subsection (3) of section 5; "court" includes any tribunal or body exercising judicial functions; "ship" includes hovercraft.

(2) In this Act:

(a) references to an agreement in subsection (2) of section 4 and subsection (3) of section 15 include references to a treaty, convention or other international agreement;

(b) references to entry of appearance and judgments in default of appearance in­clude references to any corresponding procedures.

PART II

PROCEEDINGS IN SINGAPORE BY OR AGAINST OTHER STATES

Immunity from jurisdiction

3. (1) A State is immune from the jurisdiction of the courts of Singapore except as provided in the following provisions of this Part.

204

(2) A court shall give effect to the immunity conferred by this section even though the State does not appear in the proceedings in question.

Exceptions from immunity

4. (1) A State is not immune as respects proceedings in respect of which it has submitted to the jurisdiction of the courts of Singapore.

(2) A State may submit after the dispute giving rise to the proceedings has arisen or by a prior written agreement; but a provision in any agreement that it is to be governed by the law of Singapore is not to be regarded as a submission.

(3) A State is deemed to have submitted:

(0) if it has instituted the proceedings; or

(b) subject to subsections (4) and (5), if it has intervened or taken any step in the proceedings.

(4) Paragraph (b) of subsection (3) does not apply to intervention or any step taken for the purpose only of:

(a) claiming immunity; or

(b) asserting an interest in property in circumstances such that the State would have been entitled to imm unity if the proceedings had been brought against it.

(5) Paragraph (b) of subsection (3) does not apply to any step taken by the State in ignorance of facts entitling it to immunity if those facts could not reasonably have been ascertained and immunity is claimed as soon as reasonably practicable.

(6) A submission in respect of any proceedings extends to any appeal but not to any counter-claim unless it arises out of the same legal relationship or facts as the claim.

(7) The head of a State's diplomatic mission in Singapore, or the person for the time being performing his functions, shall be deemed to have authority to submit on behalf of the State in respect of any proceedings; and any person who has entered into a contract on behalf of and with the authority of a State shall be deemed to have author­ity to submit on its behalf in respect of proceedings arising out of the contract.

5. (1) A State is not immune as respects proceedings relation to:

(0) a commercial transaction entered into by the State; or

(b) an obligation of the State which by virtue of a contract (whether a commercial transaction or not) falls to be performed wholly or partly in Singapore,

but this subsection does not apply to a contract of employment between a State and an individual.

(2) This section does not apply if the parties to the dispute are States or have other­wise agreed in writing; and paragraph (b) of subsection (1) does not apply if the contract (not being a commercial transaction) was made in the territory of the State concerned and the obligation in question is governed by its administrative law.

(3) In this section "commercial transaction" means:

(a) any contract for the supply of goods or services;

(b) any loan or other transaction for the provision of finance and any guarantee or indemnity in respect of any such transaction or of any other financial obligation; and

(c) any other transaction or activity (whether of a commercial, industrial, financial, professional or other similar character) into which a State enters or in which it engages otherwise than in the exercise of sovereign authority.

6. (1) A State is not immune as respects proceedings relating to a contract of em-

205

ployment between the State and an individual where the contract was made in Singapore or the work is to be wholly or partly performed in Singapore.

(2) Subject to subsections (3) and (4), this section does not apply if:

(a) at the time when the proceedings are brought the individual is a national of the State concerned;

(b) at the time when the contract was made the individual was neither a citizen of Singapore nor habitually resident in Singapore; or

(c) the parties to the contract have otherwise agreed in writing.

(3) Where the work is for an office, agency or establishment maintained by the State in Singapore for commercial purposes, paragraphs (a) and (b) of subsection (2) do not exclude the application of this section unless the individual was, at the time when the contract was made, habitually resident in that State.

(4) Paragraph (c) of subsection (2) does not exclude the application of this section where the law of Singapore requires the proceedings to be brought before a court in Singapore.

(5) in this section "proceedings relating to a contract of employment" includes pro­ceedings between the parties to such a contract in respect of any statutory rights or duties to which they are entitled or subject as employer or employee.

7. A State is not immune as respects proceedings in respect of:

(a) death or personal injury; or

(b) damage to or loss of tangible property,

caused by an act or omission in Singapore.

8. (1) A State is not immune as respects proceedings relating to:

(a) any interest of the State in, or its possession or use of, immovable property in Singapore; or

(b) any obligation of the State arising out of its interest in, or its possession or use of, any such property.

(2) A State is not immune as respects proceedings relating to any interest of the State in movable or immovable property, being an interest arising by way of succession, gift or bona vacantia.

(3) The fact that a State has or claims an interest in any property shall not preclude any court from exercising in respect of it any jurisdiction relating to the estates of deceased persons or persons of unsound mind or to insolvency the winding up of com­panies or the administration of trusts.

(4) A court may entertain proceedings against a person other than a State notwith­standing that the proceedings relate to property:

(a) which is in the possession or control of a State; or

(b) in which a State claims an interest,

if the State would not have been immune had the proceedings been brought against it or, in a case within paragraph (b), if the claim is neither admitted nor supported by prima facie evidence.

9. A State is not immune as respects proceedings relating to:

(a) any patent, trade-mark or design belonging to the State and registered or pro­tected in Singapore or for which the State has applied in Singapore;

(b) an alleged infringement by the State in Singapore of any patent, trade-mark, design or copyright; or

206

(c) the right to use a trade or business name in Singapore.

10. (1) A State is not immune as respects proceedings relating to its membership of a body corporate, an unincorporated body or a partnership which:

(a) has members other than States; and (b) is incorporated or constituted under the law of Singapore or is controlled from

or has its principal place of business in Singapore, being proceedings arising between the State and the body or its other members or, as the case may be, between the State and the other partners.

(2) This Section does not apply, if provision to the contrary has been made by an agreement in writing between the parties to the dispute or by the constitution or other instrument establishing or regulating the body or partnership in question.

11. (1) Where a State has agreed in writing to submit a dispute which has arisen, or may arise, to arbitration, the State is not immune as respects proceedings in the courts in Singapore which relate to the arbitration.

(2) This section has effect subject to any contrary provision in the arbitration agree-ment and does not apply to any arbitration agreement between States.

12. (1) This section applies to:

(a) Admiralty proceedings; and

(b) proceedings on any claim which could be made the subject of Admiralty pro-ceedings.

(2) A State is not immune as respects:

(a) an action in rem against a ship belonging to that State; or

(b) an action in personam for enforcing a claim in connection with such a ship,

if, at the time when the cause of action arose, the ship was in use or intended for use for commercial purposes.

(3) Where an action in rem is brought against a ship belonging to a State for en­forcing a claim in connection with another ship belonging to that State, paragraph (a) of subsection (2) does not apply as respects the first-mentioned ship unless, at the time when the cause of action relating to the other ship arose, both ships were in use or intended for use for commercial purposes.

(4) A State is not immune as respects:

(a) an action in rem against a cargo belonging to that State if both the cargo and the ship carrying it were, at the time when the cause of action arose, in use or intended for use for commercial purposes; or

(b) an action in personam for enforcing a claim in connection with such a cargo if the ship carrying it was then in use or intended for use as aforesaid.

(5) In the foregoing provisions references to a ship or cargo belonging to a State in­clude references to a ship or cargo in its possession or control or in which it claims an interest; and, subject to subsection (4), subsection (2) applies to property other than a ship as it applies to a ship.

13. A State is not immune as respects proceedings relating to its liability for:

(a) any customs duty or excise duty; or

(b) any tax in respect of premises occupied by it for commercial purposes.

Procedure

14. (1) Any writ or other document required to be served for instituting proceed-

207

ings against a State shall be served by being transmitted through the Ministry of Foreign Affairs, Singapore, to the Ministry of Foreign Affairs of the State and service shall be deemed to have been effected when the writ or document is received at the Ministry.

(2) Any time for entering an appearance (whether prescribed by rules of court or otherwise) shall begin to run two months after the date on which the writ or document is received as aforesaid.

(3) A State which appears in proceedings cannot thereafter object that subsection (1) has not been complied with in the case of those proceedings.

(4) No judgment in default of appearance shall be given against a State except on proof that subsection (1) has been complied with and that the time for entering an appearance as extended by subsection (2) has expired.

(5) A copy of any judgment given against a State in default of appearance shall be transmitted through the Ministry of Foreign Affairs, Singapore, to the Ministry of Foreign Affairs of that State and any time for applying to have the judgment set aside (whether prescribed by rules of court or otherwise) shall begin to run two months after the date on which the copy of the judgment is received at the Ministry.

(6) Subsection (1) does not prevent the service of a writ or other document in any manner to which the State has agreed and subsections (2) and (4) do not apply where service is effected in any such manner.

(7) This section shall not be construed as applying to proceedings against a State by way of counter-claim or to an action in rem; and subsection (1) shall not be construed as affecting any rules of court whereby leave is required for the service of process outside the jurisdiction.

15. (1) No penalty by way of committal or fine shall be imposed in respect of any failure or refusal by or on behalf of a State to disclose or produce any document or other information for the purposes of proceedings to which it is a party.

(2) Subject to subsections (3) and (4):

(a) relief shall not be given against a State by way of injunction or order for specific performance or for the receovery of land or other property; and

(b) the property of a State shall not be subject to any process for the enforcement of a judgment or arbitration award or, in an action in rem, for its arrest, detention or sale.

(3) Subsection (2) does not prevent the giving of any relief or the issue of any pro­cess with the written consent of the State concerned; and any such consent (which may be contained in a prior agreement) may be expressed so as to apply to a limited extent or generally; but a provision merely submitting to the jurisdiction of the courts is not to be regarded as a consent for the purposes of this subsection.

(4) Paragraph (b) of subsection (2) does not prevent the issue of any process in respect of property which is for the time being in use or intended for use for commercial purposes.

(5) The head of a State's diplomatic mission in Singapore, or the person for the time being performing his functions, shall be deemed to have authority to give on behalf of the State any such consent as is mentioned in subsection (3) and, for the purposes of subsection (4), his certificate to the effect that any property is not in use or intended for use by or on behalf of the State for commercial purposes shall be accepted as sufficient evidence of that fact unless the contrary is proved.

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PART III

SUPPLEMENTAR Y PROVISIONS

16. (1) The immunities and privileges conferred by Part II apply to any foreign or commonwealth State other than Singapore; and references to a State include references to:

(0) the sovereign or other head of that State in his public capacity;

(b) the government of that State; and

(c) any department of that government.

but not to any entity (hereinafter referred to as a separate entity) which is distinct from the executive organs of the governments of the State and capable of suing or being sued.

(2) A separate entity is immune from the jurisdiction of the courts in Singapore if, and only if:

(0) the proceedings relate to anything done by it in the exercise of sovereign author­ity; and

(b) the circumstances are such that a State would have been so immune.

(3) if a separate entity (not being a State's central bank of other monetary author­ity) submits to the jurisdiction in respect of proceedings in the case of which it is en­titled to immunity by virtue of subsection (2), subsections (1) to (4) of section 15 shall apply to it in respect of those proceedings as if references to a State were references to that entity.

(4) Property of a State's central bank or other monetary authority shall not be regarded for the purposes of subsection (4) of section 15 as in use or intended for use for commercial purposes; and where any such bank or authority is a separate entity sub­sections (1) to (3) of that section shall apply to it as if references to a State were refer­ences to the bank or authority.

(5) Section 14 applies to proceedings against the constituent territories of a federal State; and the President may by order provide for the other provisions of this Part to apply to any such constituent territory specified in the order as they apply to a State.

(6) Where the provisions of Part II do not apply to a constituent territory by virtue of any such order subsections (2) and (3) shall apply to it as if it were a separate entity.

17. If it appears to the President that the immunities and privileges conferred by Part II in relation to any State:

(0) exceed those accorded by the law of that State in relation to Singapore; or

(b) are less than those required by any treaty, convention or other international agreement to which that State and Singapore are parties,

the President may, by order, provide for restricting or, as the case may be, extending those imm unities and privileges to such extent as appears to the President to be appro­priate.

18. A certificate by or on behalf of the Minister for Foreign Affairs shall be con­clusive evidence on any question:

(0) whether any country is a State for the purposes of Part II, whether any territory is a constituent territory of a federal State for those purposes or as to the person or per­sons to be regarded for those purposes as the head or government of a State;

(b) whether, and if so when, a document has been served or received as mentioned in subsection (1) or (5) of section 14.

209

19. (1) Part II does not affect any immunity or privilege applicable in Singapore to diplomatic and consular agents, and subsection (1) of section 8 does not apply to pro­ceedings concerning a State's title to or its possession of property used for the purposes of a diplomatic mission.

(2) Part II does not apply to:

(0) proceedings relating to anything done by or in relation to the armed forces of a State while present in Singapore and, in particular, has effect subject to the Visiting Forces Act;

(b) criminal proceedings; and

(c) proceedings relating to taxation other than those mentioned in section 13.

APPENDIX V

THE PAKISTANI STATE IMMUNITY ORDINANCE 1981

ORDINANCE NO. VI of 1981

AN

ORDINANCE

to amend and consolidate the law relating to the immunity of States from the jurisdiction of courts

Whereas it is expedient to amend and consolidate the law relating to the immunity of States from the jurisdiction of courts;

And whereas the President is satisfied that circumstances exist which render it necessary to take immediate action;

Now, therefore, in pursuance of the Proclamation of the fifth day of July, 1977, read with the Laws (Continuance in Force) Order, 1977 (C.M.L.A. Order No.1 of 1977), and in exercise of all powers enabling him in that behalf, the President is pleased to make and promulgate the following Ordinance:

1. Short title, extend and commencement. (1) This Ordinance may be called the State Immunity Ordinance, 1981.

(2) It extends to the whole of Pakistan.

(3) It shall come into force at once.

2. Interpretation. In this Ordinance, "court" includes any tribunal or body exer­cising judicial functions.

Immunity from jurisdiction

3. General immunity from jurisdiction. (1) A State is immune from thejurisdic­tion of the courts of Pakistan except as hereinafter provided.

(2) A court shall give effect to the immunity conferred by subsection (1) even if the State does not appear in the proceedings in question.

Exceptions from immunity

4. Submission to jurisdiction. (1) A State is not immune as respects proceedings in respect of which it has submitted to jurisdiction.

(2) A State may submit to jurisdiction after the dispute giving rise to the proceed­ings has arisen or by a prior agreement; but a provision in any agreement that it is to be governed by the law of Pakistan shall not be deemed to be a submission.

Explanation In this subsection and in subsection (3) of section 14, "agreement" in-cludes a treaty, convention or other international agreement.

(3) A State shall be deemed to have submitted:

(a) if it has instituted the proceedings; or

(b) subject to subsection (4) it has intervened or taken any step in the proceedings.

212

(4) Clause (b) of subsection (3) does not apply:

(a) to intervention or any step taken for the purpose only of: (i) claiming immunity; or (ii) asserting an interest in property in circumstances such that the State would have

been entitled to immunity if the proceedings had been brought against it; or

(b) to any step taken by the State in ignorance of the facts entitling it to immunity if those facts could not reasonably have been ascertained and immunity is claimed as soon as reasonably practicable.

(5) A submission in respect of any proceedings extends to any appeal but not to any counter claim unless it arises out of the same legal relationship or facts as the claim.

(6) The head of a State's diplomatic mission in Pakistan, or the person for the time being performing his functions, shall be deemed to have authority to submit on behalf of the State in respect of any proceedings; and any person who has entered into a contract on behalf of and with the authority of a State shall be deemed to have authority to sub­mit on its behalf in respect of proceedings arising out of the contract.

5. Commercial transactions and contracts to be performed in Pakistan. (1) A State is not immune as respects proceedings relating to:

(a) a commercial transaction entered into by the State; or

(b) an obligation of the State which by virtue of a contract, which mayor may not be a commercial transaction, falls to be performed wholly or partly in Pakistan.

(2) Subsection (I) does not apply to a contract of employment between a State and an individual or if the parties to the dispute are States or have otherwise agreed in writing; and clause (b) of that subsection does not apply if the contract, not being a commercial transaction, was made in the territory of the State concerned and the obliga­tion in question is governed by its administrative law.

(3) In this section "commercial transaction" means:

(a) any contract for the supply of goods or services;

(b) any loan or other transaction for the provision of finance and any guarantee or indemnity in respect of any such transaction or of any other financial obligation; and

(c) any other transaction or activity, whether of a commercial, industrial, financial, professional or other similar character, into which a State eneters or in which it engages otherwise than in the exercise of its sovereign authority.

6. Contracts of employment. (1) A State is not immune as respects proceedings relating to a contract of employment between a State and an individual where the con­tract was made, or the work is to be wholly or partly performed, in Pakistan.

Explanation. In this subsection, "proceedings relating to a contract of employ­ment" includes proceedings between the parties to such a contract in respect of any statutory rights or duties to wh:~h they are entitled or subject as employer or employee.

(2) Subject to subsections (3) and (4), subsection (1) does not apply if:

(a) at the time when the proceedings are brought the individual is a national of the State concerned; or

(b) at the time when the contract was made the individual was neither a citizen of Pakistan nor habitually resident in Pakistan; or

(c) the parties to the contract have otherwise agreed in writing.

(3) Where the work is for an office, agency or establishment maintained by the State in Pakistan for commercial purposes, clauses (a) and (b) of subsection (2) do not exclude the application of subsection (1) unless the individual was, at the time when the contract was made, habitually resident in that State.

213

(4) Clause (c) of subsection (2) does not exclude the application of subsection (1) where the law of Pakistan requires the proceedings to be brought before a court in Pakistan.

7. Ownership, possession and use of property. (1) A State is not immune as respects proceedings relating to:

(a) any interest of the State in, or its possession or use of, immovable property in Pakistan; or

(b) any obligation of the State arising out of its interest in, or its possession or use of, any such property.

(2) A State is not immune as respects proceedings, relating to any interest of the State in movable or immovable property, being an interest arising by way of succession, gift or bona vacan tia.

(3) The fact that a State has or claims an interest in any property shall not preclude any court from exercising in respect of such property any jurisdiction relating to the estates of deceased persons or persons of unsound mind or to insolvency, the winding up of companies or the administration of trusts.

(4) A court may entertain proceedings against a person other than a State notwith­standing that the proceedings relate to property:

(a) which is in the possession of a State; or

(b) in which a State claims an interest,

if the State would not have been immune had the proceedings been brought against it or, in a case referred to in clause (b), if the claim is neither admitted nor supported by prima facie evidence.

8. Patentr, trade marks, etc. A State is not immune as respects proceedings re­lating to:

(a) any patent, trade mark, design or plant breeders' rights belonging to the State which are registered or protected in Pakistan or for which the State has applied in Pakistan;

(b) an alleged infringement by the State in Pakistan of any patent, trade mark, design, plant breeders' rights or copyright; or

(c) the right to use a trade or business name in Pakistan.

9. Membership of bodies corporate, etc. (1) A State is not immune as respects proceedings relating to its membership of a body corporate, an unincorporated body or a partnership which:

(a) has members other than States; and

(b) is incorporated or constituted under the law of Pakistan or is controlled from, or has its principal place of business in, Pakistan,

being proceedings arising between the State and the body or its other members or, as the case may be, between the State and the othr partners.

(2) Subsection (1) does not apply if provision to the contrary has been made by an agreement in writing between the parties to the dispute or by the constitution or other instrument establishing or regulating the body or partnership in question.

10. Arbitratiom. (1) Where a State has agreed in writing to submit a dispute which has arisen, or may arise, to arbitration, the State is not immune as respects proceedings in the courts of Pakistan which relate to the arbitration.

(2) Subsection (1) has effect subject to the provisions of the arbitration agreement and does not apply to an arbitration agreement between States.

214

11. Ship, used for commercial purposes. (1) The succeeding provisions of this sec­tion apply to:

(a) Admiralty proceedings; and (b) proceedings on any claim which could be made the subject of Admiralty pro-

ceedings.

(2) A State is not immune as respects: (a) an action in rem against a ship belonging to it; or (b) an action in personam for enforcing a claim in connection with such a ship;

if, at the time when the cause of action arose, the ship was in use or intended for use for commercial purposes.

(3) Where an action in rem is brought against a ship belonging to a State for en­forcing a claim in connection with another ship belonging to that State clause (a) of sub­section (2) does not apply as respects the first-mentioned ship unless, at the time when the cause of action relating to the other ship arose, both ships were in use or intended for use for commercial purposes.

(4) A State is not immune as respects: (a) an action in rem against a cargo belonging to that State if both the cargo and the

ship carrying it were, at the time when the cause of action arose, in use or intended for use for commercial purposes; or

(b) an action in personam for enforcing a claim in connection with such a cargo if the ship carrying it was then in use or intended for use as aforesaid.

(5) In the foregoing provisions references to a ship or cargo belonging to a State in­clude references to a ship or cargo in its possession or control or in which it claims an interest; and, subject to subsection (4), subsection (2) applies to property other than a ship as it applies to a ship.

(6) Section 5 and 6 do not apply to proceedings of the nature mentioned in sub­section (1) if the State in question is a party to the Brussels Convention and the claim relates to the operation of a ship owned or operated by that State, the carriage of cargo or passengers on any such ship or the carriage of cargo owned by that State on any other ship.

Explanation. In this section, "Brussels Convention" means the International Con­vention for the Unification of Certain Rules Concerning the Immunity of State-owned Ships signed in Brussels on the tenth day of April, 1926, and "ship" includes hovercraft.

12. Value added tax, customs·duties, etc. A State is not immune as respects pro­ceedings relating to its liability for:

(a) value added tax, any duty of customs or excise or any agricultural levy; or

(b) rates in respect of premises occupied by it for commercial purposes.

Procedure

13. Services of procell and judgment in default of appearance. (1) Any notice or other document required to be served for instituting proceedings against a State shall be served by being transmitted through the Ministry of Foreign Affairs of Pakistan to the Ministry of Foreign Affairs of the State and service shall be deemed to have been ef­fected when the notice or document is received at the latter Ministry.

(2) Any proceedings in court shall not commence earlier than two months after the date on which the notice or document is received as aforesaid.

215

(3) A State which appears in proceedings cannot thereafter object that subsection 0) has not been complied with as respects those proceedings.

(4) No judgment in default of appearance shall be given against a State except on proof that subsection (1) has been complied with and that the time for the commence­ment of proceedings specified in subsection (2) has elapsed.

(5) A copy of any judgment given against a State in default of appearance shall be transmitted through the Ministry of Foreign Affairs of Pakistan to the Ministry of Foreign Affairs of the State and the time for applying to have the judgment set aside shall begin to run two months after the date on which the copy of the judgment is re­ceived at the latter Ministry.

(6) Subsection 0) does not prevent the service of a notice or other document in any manner to which the State has agreed and subsections (2) and (4) do not apply where service is effected in any manner.

(7) The preceding provisions of this section shall not be construed as applying to proceedings against a State by way of a counter-claim or to an action in rem.

14. Other procedural privileges. (1) No penalty by way of committal to prison or rme shall be imposed in respect of any failure or refusal by or on behalf of a State to dis­close or produce any document or information for the purposes of proceedings to which it is a party.

(2) Subject to subsections (3) and (4).

(a) relief shall not be given against a State by way of injunction or order for specific performance or for the recovery of land or other property; and

(b) the property of a State, not being property which is for the time being in use or intended for use for commercial purposes, shall not be subject to any process for the enforcement of a judgment or arbitration award or, in an action in rem, for its arrest, detention or sale.

(3) Subsection (2) does not prevent the giving of any relief or the issue of any pro­cess with the written consent of the State concerned; and any such consent, which may be contained in a prior agreement, may be expressed so as to apply to a limited extent or generally:

Provided that a provision merely submitting to the jurisdiction of the courts shall not be deemed to be a consent for the purposes of this subsection.

(4) The head of a State's diplomatic mission in Pakistan, or the person for the time being performing his functions, shall be deemed to have authority to give on behalf of the State any such consent as is mentioned in subsection (3) and, for the purposes of clause (b) of subsection (2), his certificate that any property is not in use or intended for use by or on behalf of the State for commercial purposes shall be accepted as sufficient evidence of that fact unless the contrary is proved.

Supplementary provisions

15. States entitled to immunities and privileges. 0) The immunities and privileges conferred by this Act apply to any foreign State; and references to State include refer­ences to:

(a) the sovereign or other head of that State in his public capacity;

(b) the government of that State; and

(c) any department of that government,

but not to any entity, hereinafter referred to as a "separate entity", which is distinct from the executive organs of the government of the State and capable of suing or being sued.

216

(2) A separate entity is immune from the jurisdiction of the courts of Pakistan if, and only if:

(a) the proceedings relate to anything done by it in the exercise of sovereign author­ity; and

(b) the circumstances are such that a State would have been so immune.

(3) If a separate entity, not being a State's central bank or other monetary author­ity, submits to the jurisdiction in respect of proceedings in the case of which it is entitled to immunity by virtue of subsection (2) of this section, the provisions of subsections (I) to (3) of section 14 shall apply to it in respect of those proceedings as if references to a State were references to that entity.

(4) Property of a State's central bank or other monetary authority shall not be regarded for the purposes of su bsection (3) of section 14 as in use or intended for use for commercial purposes; and where any such bank or authority is a separate entity subsec­tions (1) and (2) of that section shall apply to it as if references to a State were refer­ences to the bank or authority.

(5) Section 13 applies to proceedings against the constituent territories of a federal State; and the Federal Government may, by notification in the official Gazette, provide for the other provisions of this Ordinance to apply to any such constituent territory specified in the notification as they apply to a State.

(6) Where the provisions of this Ordinance do not apply to a constituent territory by virtue of a notification under subsection (5), the provisions of subsections (2) and (3) shall apply to it as if it were a separate entity.

16. Restriction and extension of immunities and privileges. (I) If it appears to the Federal Government that the immunities and privileges conferred by this Ordinance in relation to any State:

(a) exceed those accorded by the law of that State in relation to Pakistan; or

(b) are less than those required by an treaty, convention or other international agreement to which that State and Pakistan are parties,

the Federal Government may, by notification in the official Gazette, provide for restrict­ing or, as the case may be, extending those immunities and privileges to such extent as it may deem fit.

17. Savings, etc. (I) This Ordinance does not affect any immunity or privilege conferred by the Diplomatic and Consular Privileges Act, 1972 (IX of 1972); and

(a) section 6 does not apply to proceedings concerning the employment of the members of a mission within the meaning of the Convention set out in the First Sched­ule to the said Act of 1972 or of the members of a consular post within the meaning of the Convention set out in the Second Schedule to that Act;

(b) subsection (1) of section 7 does not apply to proceedings concerning a State's title to, or its possession of, property used for the purposes of a diplomatic mission.

(2) This Ordinance does not apply to:

(a) proceedings relating to anything done by or in relation to the armed forces of a State while present in Pakistan;

(b) criminal proceedings; or

(c) proceedings relating to taxation other than those mentioned in section 12.

18. Proof as to certain matters. A certificate under the hand of a Secretary to the Government of Pakistan shall be conclusive evidence on any question.

(a) whether any country is a State for the purposes of this Ordinance, whether any

217

territory is a constituent territory of a federal State for those purposes or as to the per­son or persons to be regarded for those purposes as the head or government of a State; or

(b) whether, and if so when, a document has been served or received as mentioned in subsection (1) or subsection (5) of section 13.

19. Repeal. Sections 86 and 87 of the Code of Civil Procedure, 1908 (Act V of 1908), are hereby repealed.

APPENDIX VI

THE SOUTH AFRICAN FOREIGN STATES IMMUNITIES ACT 1981

ACT

To determine the extent of the immunity of foreign states from the jurisdiction of the courts of the Republic;

and to provide for matters connected herewith.

Be it enacted by the State President and the House of Assembly of the Republic of South Africa, as follows:

1. (I) In this Act, unless the context otherwise indicates:

(i) "commercial purposes" means purposes of any commercial transaction as defined in section 4 (3);

(ii) "consular post" means a consulate-general, consulate, consular agency, trade office or labour office;

(iii) "Republic" includes the territorial waters of the Republic, as defined in section 2 of the Territorial Waters Act, 1963 (Act No. 87 of 1963);

(iv) "separate entity" means an entity referred to in subsection (2) (i).

(2) Any reference in this Act to a foreign state shall in relation to any particular foreign state be construed as including a reference to:

(a) the head of state of that foreign state, in his capacity as such head of state; (b) the government of that foreign state; and

(c) any department of that government, but not including a reference to:

(i) any entity which is distinct from the executive organs of the government of that foreign state and capable of suing or being sued; or

(ii) any territory forming a constituent part of a federal foreign state.

2. (1) A foreign state shall be immune from the jurisdiction of the courts of the Republic except as provided in this Act or in any proclamation issued thereunder.

(2) A court shall give effect to the immunity conferred by this section even though the foreign state does not appear in the proceedings in question.

(3) The provisions of this Act shall not be construed as subjecting any foreign state to the criminal jurisdiction of the courts of the Republic.

3. (l) A foreign state shall not be immune from the jurisdiction of the courts of the Republic in proceedings in respect of which the foreign state has expressly waived its immunity or is in terms of subsection (3) deemed to have waived its immunity.

(2) Waiver of immunity may be effected after the dispute which gave rise to the proceedings has arisen or by prior written agreement, but a provision in an agreement that it is to be governed by the law of the Republic shall not be regarded as a waiver.

(3) A foreign state shall be deemed to have waived its immunity:

220

(a) if it has instituted the proceedings; or

(b) subject to the provisions of subsection (4), if it has intervened or taken any step in the proceedings.

(4) Subsection (3) (b) shall not apply to intervention or any step taken for the pur­pose only of:

(a) claiming immunity, or

(b) asserting an interest in property in circumstances such that the foreign state would have been entitled to immunity if the proceedings had been brought against it.

(5) A waiver in respect of any proceedings shall apply to any appeal and to any counter-claim arising out of the same legal relationship or facts as the claim.

(6) The head of a foreign state's diplomatic mission in the Republic, or the person for the time being performing his functions, shall be deemed to have authority to waive on behalf of the foreign state its immunity in respect of any proceedings, and any person who has entered into a contract on behalf of and with the authority of a foreign state shall be deemed to have authority to waive on behalf of the foreign state its immunity in respect of proceedings arising out of the contract.

4. (1) A foreign state shall not be immune from the jurisdiction of the courts of the Republic in proceedings relating to:

(a) a commercial transaction entered into by the foreign state; or

(b) an obligation of the foreign state which by virtue of a contract (whether a com­mercial transaction or not) falls to be performed wholly or partly in the Republic.

(2) Subsection (1) shall not apply if the parties to the dispute are foreign states or have agreed in writing that the dispute shall be justiciable by the courts of a foreign state.

(3) In subsection (1) "commercial transaction" means:

(a) any contract for the supply of services or goods;

(b) any loan or other transaction for the provision of finance and any guarantee or indemnity in respect of any such loan or other transaction or of any other financial obligation; and

(c) any other transaction or activity of a commercial, industrial, financial, pro­fessional or other similar character into which a foreign state enters or in which it en­gages otherwise than in the exercise of sovereign authority,

but does not include a contract of employment between a foreign state and an individ­ual.

5. (1) A foreign state shall not be immune from the jurisdiction of the courts of the Republic in proceedings relating to a contract of employment between the foreign state and an individual if:

(a) the contract was entered into in the Republic or the work is to be performed wholly or partly in the Republic; and

(b) at time when the contract was entered into the individual was a South African citizen or was ordinarily resident in the Republic; and

(c) at the time when the proceedings are brought the individual is not a citizen of the foreign state.

(2) Subsection (1) shall not apply if:

(a) the parties to the contract have agreed in writing that the dispute or any dispute relating to the contract shall be justiciable by the courts of a foreign state; or

(b) the proceedings relate to the employment of the head of a diplomatic mission or

221

any member of the diplomatic, administrative, technical or service staff of the mission or to the employment of the head of a consul'lr post or any member of the consular, labour, trade, administrative, technical or service staff of the post.

6. A foreign state shall not be immune from the jurisdiction of the courts of the Republic in proceedings relating to:

(a) the death or injury of any person; or

(b) damage to or loss of tangible property,

caused by an act or omission in the Republic.

7. (1) A foreign state shall not be immune from the jurisdiction of the courts of the Republic in proceedings relating to:

(a) any interest of the foreign state in, or its possession or use of, immovable prop­erty in the Republic;

(b) any obligation of the foreign state arising out of its interest in, or its possession or use of, such property; or

(c) any interest of the foreign state in movable or immovable property, being an interest arising by way of succession, gift or bona vacantia.

(2) Subsection (1) shall not apply to proceedings relating to a foreign state's title to, or its use or possession of, property used for a diplomatic mission or a consular post.

8. A foreign state shall not be immune from the jurisdiction of the courts of the Republic in proceedings relating to:

(a) any patent, trade-mark, design or plant breeder's right belonging to the foreign state and registered or protected in the Republic or for which the foreign state has applied in the Republic; or

(b) an alleged infringement by the foreign state in the Republic of any patent, trade-mark, design, plant breeder's right or copyright; or

(c) the right to use a trade or business name in the Republic.

9. (1) A foreign state which is a member of an association or other body (wheth­er a juristic person or not), or a partnership, which:

(a) has members that are not foreign states; and

(b) is incorporated or constituted under the law of the Republic or is controlled from the Republic or has its principal place of business in the Republic,

shall not be immune from the jurisdiction of the courts of the Republic in proceedings which:

(i) relate to the foreign state's membership of the association, other body or partnership; and

(ti) arise between the foreign state and the association or other body or its other members or, as the case may be, between the foreign state and the other part­ners.

(2) Subsection (1) shall not apply if:

(a) in terms of an agreement in writing between the parties to the dispute; or

(b) in terms of the constitution or other instrument establishing or governing the association, other body or partnership in question,

the dispute is justiciable by the courts of a foreign state.

10. (1) A foreign state which has agreed in writing to submit a dispute which has arisen, or may rise, to arbitration, shall not be immune from the jurisdiction of the courts of the Republic in any proceedings which relate to the arbitration.

222

(2) Subsection (1) shall not apply if: (a) the arbitration agreement provides that the proceedings shall be brought in the

courts of a foreign state; or (b) the parties to the arbitration agreement are foreign states.

11. (1) A foreign state shall not be immune from the admiralty jurisdiction of any court of the Republic in:

(a) an action in rem against a ship belonging to the foreign state; or (b) an action in personam for enforcing a claim in connection with such a ship,

if, at the time when the cause of action arose, the ship was in use or intended for use for commercial purposes.

(2) A foreign state shall not be immune from the admiralty jurisdiction of any court of the Republic in:

(a) an action in rem against any cargo belonging to the foreign state if both the cargo and the ship carrying it were, at the time when the cause of action arose, in use or intended for use for commercial purposes; or

(b) an action in personam for enforcing a claim in connection with any such cargo if the ship carrying it was, at the time when the cause of action arose, in use or intended for use for commercial purposes.

(3) Any reference in this section to a ship or cargo belonging to a foreign state shall be construed as including a reference to a ship or cargo in the possession or control of a foreign state or in which a foreign state claims an interest, and, subject to the provisions of subsection (2), subsection (1) shall apply to property other than a ship as it applies to a ship.

12. A foreign state shall not be immune from the jurisdiction of the courts of the Republic in proceedings relating to the foreign state's liability for:

(a) sales tax or any customs or excise duty; or

(b) rates in respect of premises used by it for commercial purposes.

13. (1) Any process or other document required to be served for instituting pro­ceedings against a foreign state shall be served by being transmitted through the Depart­ment of Foreign Affairs and Information of the Republic to the ministry of foreign affairs of the foreign state, and service shall be deemed to have been effected when the process or other document is received at that ministry.

(2) Any time prescribed by rules of court or otherwise for notice of intention to defend or oppose or entering an appearance shall begin to run two months after the date on which the process or document is received as aforesaid.

(3) A foreign state which appears in proceedings cannot thereafter object that sub­section (1) has not been complied with in the case of those proceedings.

(4) No judgment in default of appearance shall be given against a foreign state except on proof that subsection (1) has been complied with and that the time for notice of intention to defend or oppose or entering an appearance as extended by subsection (2) has expired.

(5) A copy of any default judgment against a foriegn state shall be transmitted through the Department of Foreign Affairs and Information of the Republic to the ministry of foreign affairs of the foreign state, and any time prescribed by rules of court or otherwise for applying to have the judgment set aside shall begin to run two months after the date on which the copy of the judgment is received at that ministry.

(6) Subsection (1) shall not prevent the service of any process or other document in

223

any manner to which the foreign state has agreed, and subsection (2) and (4) shall not apply where service is effected in any such manner.

(7) The preceding provisions of this section shall not be construed as applying to proceedings against a foreign state by way of counter-claim or to an action in rem, and subsection (1) shall not be construed as affecting any rules of court whereby leave is required for the service of process outside the jurisdiction of the court.

14. (1) Subject to the provisions of subsections (2) and (3): (a) relief shall not be given against a foreign state by way of interdict or order for

specific performance or for the recovery of any movable or immovable property; and

(b) the property of a foreign state shall not be subject to any process for the en­forcement of a judgment or an arbitration award or, in an action in rem, for its attach­ment or sale.

(2) Subsection (1) shall not prevent the giving of any relief or the issue of any pro­cess with the written consent of the foreign state concerned, and any such consent, which may be contained in a prior agreement, may be expressed so as to apply to a limited extent or generally, but a mrere waiver of a foreign state's immunity from the jurisdiction of the courts of the Republic shall not be regarded as a consent for the pur­poses of this subsection.

(3) Subsection (1) (b) shall not prevent the issue of any process in respect of prop­erty which is for the time being in use or intended for use for commercial purposes.

15. (1) A separate entity shall be immune from the jurisdiction of the courts of the Republic only if:

(a) the proceedings relate to anything done by the separate entity in the exercise of sovereign authority; and

(b) the circumstances are such that a foreign state would have been so immune.

(2) If a separate entity, not being the central bank or other monetary authority of a foreign state, waives the immunity to which it is entitled by virtue of subsection (1) in respect of any proceedings, the provisions of section 14 shall apply to those proceedings as if references in those provisions to a foreign state were references to that separate entity.

(3) Property of the central gank or other monetary authority of a foreign state shall not be regarded for the purposes of subsection (3) of section 14 as in use or intended for use for commercial purposes, and where any such bank or authority is a separate entity the provisions of subsections (1) and (2) of that section shall apply to it as if references in those provisions to a foreign state were references to that bank or authority.

16. If it appears to the State President that the immunities and privileges conferred by this Act in relation to a particular foreign state:

(a) exceed or are less than those accorded by the law of that foreign state in rela­tion to the Republic; or

(b) are less than those required by any treaty, convention or other international agreement to which that foreign state and the Republic are parties, he may by proclamation in the Gazette restrict or, as the case may be, extend those im­munities and privileges to such extent as appears to him to be appropriate.

17. A certificate by or on behalf of the Minister of Foreign Affairs and Information shall be conclusive evidence on any question:

(a) whether any foreign country is a state for the purposes of this Act; (b) whether any territory is a constituent part of a federal foreign state for the said

purposes;

224

(e) as to the person or persons to be regarded for the said purposes as the head of state or government of a foreign state;

(d) whether, and if so when, any document has been served or received as con­templated in section 13 (1) or (5).

18. This Act shall be called the Foreign States Immunities Act, 1981, and shall come into operation on a date to be fixed by the State President by proclamation in the Gazette.

Short title

Defmitions

"agency of a foreign state"

"commercial activity"

"foreign state"

"political subdivision .,

State immunity

Court to give effect to immunity

Immunity waived

APPENDIX VII

THE CANADIAN STATE IMMUNITY ACT 1982

ACT

to provide for state immunity in Canadian courts

[Assented to 3rd June, 1982; came into effect July 15,1982]

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

1. This Act may be cited as the State Immunity Act.

INTERPRETATION

2. In this Act, "agency of a foreign state" means any legal entity that is an organ of the foreign state but that is separate from the foreign state;

"commercial activity" means any particular transaction, act or conduct or any regular course of conduct that by reason of its nature is of a commercial character;

"foreign state" includes (a) any sovereign or other head of the foreign state or of any political subdivision of the foreign state while acting as such in a pu blic capacity, (b) any government of the foreign state or of any political sub­division of the foreign state, including any of its departments, and any agencies of the foreign state, and (c) any political su bdivision of the foreign state:

"political subdivision" means a province, state or other like political subdivision of a foreign state that is a federal state.

ST A TE IMMUNITY

3. (1) Except as provided by this Act, a foreign state is immune from the jurisdiction of any court in Canada.

(2) In any proceedings before a court, the court shall give effect to the immunity conferred on a foreign state by subsection (1) notwith­standing that the state has failed to take any step in the proceedings.

4. (1) A foreign state is not immune from the jurisdiction of a court if the state waives the immunity conferred by subsection 3(1) by submitting to the jurisdiction of the court in accordance with subsec­tion (2) or (4) .

226

State submits to jurisdiction

Exception

Third party proceedings and counter­claims

Appeal and review

Commercial activity

Death and property damage

Maritime law

Cargo

(2) In any proceedings before a court, a foreign state submits to the jurisdiction of the court where it

(a) explicitly submits to the jurisdiction of the court by written agreement or otherwise either before or after the proceedings com­mence; (b) initiates the proceedings in the court; or (c) intervenes or takes any step in the proceedings before the court.

(3) Paragraph (2)(c) does not apply to

(a) any intervention or step taken by a foreign state in proceedings before a court for the purpose of claiming immunity from the juris­diction of the court; or (b) any step taken by a foreign state in ignorance of facts entitling it to immunity if those facts should not reasonably have been ascer­tained before the step was taken and immunity is claimed as soon as reasonably practicable after they are ascertained.

(4) A foreign state that initiates proceedings in a court or that intervenes or takes any step in proceedings before a court, other than an intervention or step to which paragraph (2)(c) does not apply, sub­mits to the jurisdiction of the court in respect of any third party pro­ceedings that arise, or counter-claim that arises, out of the subject­matter of the proceedings initiated \.y the state or in which the state has so intervened or taken a step.

(5) Where, in any proceedings before a court, a foreign state sub­mits to the jurisdiction of the court in accordance with subsection (2) or (4), such submission is deemed to be a submission by the state to the jurisdiction of such one or more courts by which those proceedings may, in whole or in part, subsequently be considered on appeal or in the exercise of supervisory jurisdiction.

s. A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to any commercial activity of the foreign state.

6. A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to

(a) any death or personal injury, or

(b) any damage to or loss of property that occurs in Canada.

7. (1) A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to

(a) an action in rem against a ship owned or operated by the state, or

(b) an action in personam for enforcing a claim in connection with such a ship,

if, at the time the claim arose or the proceedings were commenced, the ship was being used or was intended for use in a commercial activity.

(2) A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to

(a) an action in rem against any cargo owned by the state if, at the

Idem

Property in Canada

Service on a foreign state

Idem

Service on an agency of a foreign state

Idem

Date of service

Default judgment

227

time the claim arose or the proceedings were commenced, the cargo and the ship carrying the cargo were being used or were intended for use in a commercial activity; or (b) an action in perronam for enforcing a claim in connection with such cargo if, at the time the claim arose or the proceedings were commenced, the ship carrying the cargo was being used or was in­tended for use in a commercial activity.

(3) For the purposes of subsections (1) and (2), a ship or cargo owned by a foreign state includes any ship or cargo in the possession or control of the state and any ship or cargo in which the state claims an interest.

8. A foreign state is not immune from the jurisdiction of a court in any proceedings that relate to an interest of the state in property that arises by way of succession, gift or bona vacantia.

PROCEDURE AND RELIEF

9. (1) Service of an originating document on a foreign state, other than on an agency of the foreign state, may be made

(a) in any manner agreed on by the state; (b) in accordance with any international Convention to which the state is a party; or (c) in the manner provided in subsection (2).

(2) For the purposes of paragraph (1)(c), anyone wishing to serve an originating document on a foreign state may deliver a copy of the document, in person or by registered mail, to the Under-Secretary of State for External Affairs or a person designated by him for the pur­pose, who shall transmit it to the foreign state.

(3) Service of an originating document on an agency of a foreign state may be made

(a) in any manner agreed on by the agency;

(b) in accordance with any international Convention applicable to the agency; or

(c) in accordance with any applicable rules of court.

(4) Where service on an agency of a foreign state cannot be made under subsection (3), a court may, by order, direct how service is to be made.

(5) Where service of an originating document is made in the man­ner provided in subsection (2), service of the document shall be deemed to have been made on the day that the Under-Secretary of State for External Affairs or a person designated by him pursuant to subsection (2) certifies to the relevant court that the copy of the document has been transmitted to the foreign state.

(6) Where, in any proceedings in a court, service of an originating document has been made on a foreign state in accordance with subsec­tion (1), (3) or (4) and the state has failed to take, within the time limited therefor by the rules of the court or otherwise by law, the initial step required of a defendant or respondent in such proceedings in that court, no further step toward judgment may be taken in the pro-

228

Idem

Idem

Applkation to set aside de­fault judgment

No injunction, specifk performance, etc., without consent

Submis~ion not l'onsent

Agency of a foreign state

r,el'ution

Property of an agency of a fOTt'ign state is not immunt'

Military property

ceedings except after the expiration of at least sixty days following the date of service of the originating document.

(7) Where judgment is signed against a foreign state in any pro­ceedings in which the state has failed to take the initial step referred to in subsection (6), a certified copy of the judgment shall be served on the foreign state

(a) where service of the document that originated the proceedings was made on an agency of the foreign state, in such manner as is ordered by the court; or

(b) in any other case, in the manner specified in paragraph (1)(e) as though the judgment were an originating document.

(8) Where, by reason of subsection (7), a certified copy of a judg­ment is required to be served in the manner specified in paragraph (1) (e), subsections (2) and (5) apply with such modifications as the cir­cumstances require.

(9) A foreign state may, within sixty days after service on it of a certified copy of a judgment pursuant to subsection (7), apply to have the judgment set aside.

10. (1) Subject to subsection (3), no relief by way of an injunc­tion, specific performance or the recovery of land or other property may be granted against a foreign state unless the state consents in writing to such relief and, where the state so consents, the relief granted shall not be greater than that consented to by the state.

(2) Submission by a foreign state to the jurisdiction of a court is not consent for the purposes of subsection (1).

(3) This section does not apply to an agency of a foreign state.

11. (1) Subject to subsections (2) and (3), property of a foreign state that is located in Canada is immune from attachment and exe­cution and, in the case of an action in rem, from arrest, detention, seizure and forfeiture except where

(a) the state has, either explicitly or by implication, waived its im­munity from attachment, execution, arrest, detention, seizure or forfeiture, unless the foreign state has withdrawn the waiver of im­munity in accordance with any term thereof that permits such with­drawal;

(b) the property is used or is intended for a commercial activity; or

(e) the execution relates to a judgment establishing rights in prop­erty that has been acquired by succession or gift or in immovable property located in Canada.

(2) Subject to subsection (3), property of an agency of a foreign state is not immune from attachment and execution and, in the case of an action in rem, from arrest, detention, seizure and forfeiture, for the purpose of satisfying a judgment of a court in any proceedings in respect of which the agency is not immune from the jurisdiction of the court by reason of any provision of this Act.

(3) Property of a foreign state

(a) that is used or is intended to be used in connection with a military activity, and

Property of a foreign n:ntral bank imlllune

",aiver 01 1I11lllumty

No fine for failurl' to produl'l'

Agcnl'Y of a foreign state

Certifkate is conclusive cvidence

Idt'm

Governor in Council may restrKt immunity b~' order

229

(b) that is military in nature or is under the control of a military authority or defence agency

is immune from attachment and execution and, in the case of an action in rem, from arrest, detention, seizure and forfeiture.

(4) Subject to SUbsection (5), property of a foreign central bank or monetary authority that is held for its own account and is not used or intended for a commercial activity is immune from attachment and execution.

(5) The immunity conferred on property of a foreign central bank or monetary authority by subsection (4) does not apply where the bank, authority or its parent foreign government has explicitly waived the immunity, unless the bank, authority or government has withdrawn the waiver of immunity in accordance with any term thereof that per­mits such withdrawal.

12. (1) No peanlty or fine may be imposed by a court against a foreign state for any failure or refusal by the state to produce any document or other information in the course of proceedings before the court.

(2) Subsection (1) does not apply to an agency of a foreign state.

GENERAL

13. (1) A certificate issued by the Secretary of State for External Affairs, or on his behalf by a person authorized by him, with respect to any of the following questions, namely,

(a) whether a country is a foreign state for the purposes of this Act,

(b) whether a particular area or territory of a foreign state is a political subdivision of that state, or

(e) whether a person or persons are to be regarded as the head of government of a foreign state or of a political subdivision of the foreign state,

is admissible in evidence as conclusive proof of any matter stated in the certificate with respect to that question, without proof of the signature of the Secretary of State for External Affairs or other person or of that other person's authorization by the Secretary of State for External Affairs.

(2) A certificate issued by the Under-Secretary of State for Ex­ternal Affairs, or on his behalf by a person designated by him pursuant to subsection 9(2), with respect to service of an originating or other document on a foreign state in accordance with that subsection is ad­missible in evidence as conclusive proof of any matter stated in the certificate with respect to such service, without proof of the signature of the Under-Secretary of State for External Affairs or other person or of that other person's authorization by the Under-Secretary of State for Ex ternal Affairs.

14. The Governor in Council may, on the recommendation of the Secretary of State for External Affairs, by order restrict any immunity or privileges under this Act in relation to a foreign state where, in the opinion of the Governor in Council, the immunity or privileges exceed those accorded by the law of that state.

230

Visiting Forcer Act, Diplomat­ic and Consulizr Privileges and Immunities Act

Rules of court not affected

Application

Coming into force

15. Where, in any proceeding or other matter to which a provision of this Act and a provision of the Visiting Forces Act or the Diplomatic and Consular Privileges and Immunities Act apply, there is a conflict between such provisions, the provision of this Act ceases to apply in such proceeding or other matter to the extent of the conflict.

16. Except to the extent required to give effect to this Act, nothing in this Act shall be construed or applied so as to negative or affect any rules of a court, including rules of a court relating to service of a document out of the jurisdiction of the court.

17. This Act does not apply to criminal proceedings or proceedings in the nature of criminal proceedings.

COMMENCEMENT

18. This Act or any provision thereof shall come into force on a day or days to be fixed by proclamation.

APPENDIX VIII

THE ILA MONTREAL DRAFT CONVENTION ON ST ATE IMMUNITY

(1982)

The States Party to this Convention.

Desiring to achieve a further harmonization of the law of State Immunity.

Agree upon the following Articles:

ARTICLE I

Definitions A. Tribunal

The term "tribunal includes any court and any administrative body acting in an adjudicative capacity.

B. Foreign State The term "foreign State" includes: 1. The government of the State; 2. Any other State organs; 3. Agencies and instrumentalities of the State not possessing legal personality

distinct from the State; 4. The constituent units of a federal State. An agency or instrumentality of a foreign State which possess legal personality distinct from the State shall be treated as a foreign State only for acts or omissions performed in the exercise of sovereign authority, i.e. jure imperii.

C. Commercial Activity The term "commercial activity" refers either to a regular course of commercial conduct or a particular commercial transaction or act. It shall include any activity or transaction into which a foreign State enters or in which it engages otherwise than in the exercise of sovereign authority and in particular: 1. Any arrangemen for the supply of goods or services; 2. Any fmancial transaction involving lending or borrowing or guaranteering fman­

cialobligations. In applying this definition, the commercial character of a particular act shall be deter­mined by reference to the nature of the act rather than by reference to its purpose.

ARTICLE II

Immunity of a Foreign State from adjudication In general, a foreign State shall be immune from the adjudicatory jurisdiction of a

forum State for acts performed by it in the exercise of its sovereign authority, i.e. jure

232

imperii. It shall not be immune in the circumstances provided in Article III.

ARTICLE III

Exceptions to Immunity from Adjudication A foreign State shall not be immune from the jurisdiction of the forum State to

adjudicate in the following instances inter alia: A. Where the foreign State has waived its immunity from the jurisdiction of the forum

State either expressly or by implication. A waiver may not be withdrawn except in accordance with its terms. 1. An express waiver may be made inter alia:

(a) by unilateral declaration; or (b) by international agreement; or (c) by a provision in a contract; or (d) by an explicit agreement.

2. An implied waiver may be made inter alia: (a) by participating in proceedings before a tribunal of the forum State.

(i) Subsection 2(a) above shall not apply if a foreign State intervenes or takes steps in the proceedings for the purpose of: (A) claiming immunity; or (B) asserting an interest in the proceedings in circumstances such

that it would have been entitled to immunity if the proceedings had been brought against it;

(ii) In any action in which a foreign State participates in a proceeding before a tribunal in the forum State, the foreign State shall not be immune with respect to any counterclaim or setoff (irrespective of the amount thereof): (A) for which a foreign State would not be entitled to immunity

under other provisions of this Convention had such a claim been brought in a separate action against the foreign State; or

(B) arising out of the transaction or occurrence that is the subject matter of the claim of the foreign State;

(iii) In any action not within the scope of sUbsection 2(A)(ii) above in which a foreign State participates in a proceeding before a tribunal in the forum State, the foreign State shall not be immune with respect to claims arising between the parties from umelated transactions up to the amount of its adverse claim.

(b) by agreeing in writing to submit a dispute which has arisen, or may arise, to arbitration in the forum State or in a number of States which may include the forum State. In such an instance a foreign State shall not be immune with respect to proceedings in a tribunal of the forum State which relate to: (i) the constitution or appointment of the arbitral tribunal; or (ii) the validity or interpretation of the arbitration agreement or the

award, or (iii) the arbitration procedure; or (iv) the setting aside of the award.

B. Where the cause of action arises out of: 1. A commercial activity carried on by the foreign State; or 2. An obligation of the foreign State arising out of a contract (whether or not a

commercial transaction but excluding a contract of employment) unless the parties have otherwise agreed in writing.

C. Where the foreign State enters into a contract for employment in the forum State, or

233

where work under such a contract is to be eprformed wholly or partly in the forum State and the proceedings relate to the contract. This provision shall not apply if: 1. At the time proceedings are brought the employee is a national of the foreign

State; or 2. At the time the contract for employment was made the employee was neither a

national nor a permanent resident of the forum State; or 3. The employer and employee have otherwise agreed in writing. This provision shall not confer on tribunals in the forum State competence in respect of employees appointed under the public (administrative) law of the foreign State.

D. Where the cause of action realtes to: I. The foreign State's rights or interests in, or its possession or use of, immovable

property in the forum State; or 2. Obligations of the foreign State arising out of its rights or interests in, or its

possession or use of, immovable property in the forum State; or 3. Rights or interests of the foreign State in movable or immovable property in the

forum State arising by way of succession, gift or bona vacantia. E. Where the cause of action relates to:

1. Intellectual or industrial property rights (pantet, industrial design, trademark, copyright, or other similar rights) belonging to the foreign State in the forum State or for which the foreign State has applied in the forum State; or

2. A claim for infringement by the foreign State of any patent, industrial design, trademark, copyright or other similar right; or

3. The right to use a trade or business name in the forum State. F. Where the cause of action relates to:

1. Death or personal injury; or 2. Damage to or loss of property. Subsections 1 and 2 shall not apply unless the act or omission which caused the death, injury or damage occurred wholly or partly in the forum State.

G. Where the cause of action relates to rights in property taken in violation of inter­national law and that property or property exchanged for that property is: 1. In the forum State in connection with a commercial activity carried on in the

forum State by the foreign State; or 2. Owned or operated by an agency or instrumentality of the foreign State and

that agency or instrumentality is engaged in a commercial activity in the forum State.

ARTICLE IV

Service of Process

In proceedings against a foreign State under these articles the following rules shall apply: A. Service shall be made upon a foreign State:

1. By transmittal of a copy of the summons, notice of suit, and complaint in accordance with any special arrangement in writing for service between the plaintiff and the foreign State; or

2. By transmittal of a copy of the summons, notice of suit, and complaint in accordance with any applicable international agreement on service of judicial documents; or

3. By transmittal of a copy of the summons, notice of suit, and complaint through diplomatic channels to the ministry of foreign affairs of the foreign State; or

4. By transmittal of a copy of the summons, notice of suit, and complaint in any other manner agreed between the foreign State and the forum State.

234

B. Service of documents shall be deemed to have been effected upon their receipt by the ministry of foreign affairs unless some other time of service has been prescribed in an applicable international convention or arrangement.

C. The time limit within which a State must enter an appearance or appeal against any judgment or order shall begin to run sixty days after the date on which the summons or notice of suit or complaint is deemed to have been effectively received in accor­dance with this article.

ARTICLE V

Defar.tlt Judgments No default judgment may be entered by a tribunal in a forum State against a foreign

State, unless service has been effected in accordance with Article IV and a claim or right to relief is established to the satisfaction of the tribunal.

ARTICLE VI

Extent of Liability A. As to any claim with respect to which a foreign State is not entitled to immunity

under this Convention, the foreign State shall be liable as to amount to the same extent as a private individual under like circumstances; but a foreign State shall not be liable for punitive damages. If, however, in any case wherein death or other loss has occurred, the law of the place where the action or omission occurred provides, or has been construed to provide, for damages only punitive in nature, the foreign State shall be liable for actual or compensatory damages measured by the primary loss in­curred by the persons for whose benefit the suit was brought.

B. Judgments enforcing maritime liens against a foreign State may not exceed the value of the vessel or cargo, with value assessed as of the date notice of suit was served.

ARTICLE VII

Immunity from Attachment and Execution A foreign State's property in the forum State shall be immune from attachement,

arrest, and execution, except as provided in Article VIII.

ARTICLE VIII

Exceptions to Immunity from Attachment and Execution A. A foreign State's property in the forum State, shall not be immune from any mea­

sure for the enforcement of a judgment or an arbitration award if: 1. The foreign State has waived its immunity either expressly or by implication

from such measures. A waiver may not be withdrawn except in accordance with its terms; or

2. The property is in use for the purposes of commercial activity or was in use for the commercial activity upon which the claim is based; or

3. Execution is against property which has been taken in violation of international law, or which has been exchanged for property taken in violation of internation­al law and is pursuant to a judgment or an arbitral award establishing rights in such property.

B. In the case of mixed financial accounts that proportion duly identified of the ac­count used for non-commercial activity shall be entitled to immunity.

C. Attachment or execution shall not be permitted, if: 1. The property against which execution is sought to be had is used for diplomatic

or consular purposes; or

235

2. The property is of a military character or is used or intended for use for military purposes; or

3. The property is that of a State central bank held by it for central banking pur­poses; or

4. The property is that of a State monetary authority held by it for monetary pur­poses;

unless the foreign State has made an explicit waiver with respect to such property. D. In exceptional circumstances, a tribunal of the forum State may order interim mea­

sures against the property of a foreign State available under this convention for attachment, arrest, or execution, including prejudgment attachment of assets and in­junctive relief, if a party present a prima facie case that such assets within the terri­torial limits of the forum State may be removed, dissipated or otherwise dealt with by the foreign State before the tribunal renders judgment and there is a reasonable probability that such action will frustrate execution of any such judgment.

ARTICLE IX

Miscellaneous Provisions A. This Convention is without prejudice to:

1. Other applicable international agreements; 2. The rules of international law relating to diplomatic and consular privileges and

immunities, to the immunities of foreign public ships and to the immunities of international organizations.

B. Nothing in this Convention shall be interpreted as conferring on tribunals in the forum State any additional competence with respect to subject matter.

SUBJECT AND NAME INDEX

Act of state In England, 77, 155 note 54 In the United States, 38, 56

Acta jure gestiones, see: Private acts Acta jure imperii, see: Public acts Actes de gouvernement, 77 Afghanistan, 39 Aix-en-Provence session of the lnstitut

(1954),141 Allen, 33 Anglo-Belgian Postal Convention 1876, 17 Arbitration clause, 81 Argentina, 101, 162 note 62 Asian-African Legal Consultative Com-

mittee, 61-62 Assimilative theory

Lauterpacht's version, 89-91,105,164 note 85

New version, 23, 79, 105-106, 133-135

Atkin, 36 Austria, 25, 33,129 Austrian case-law, 160 note 52, 165 note

100 Australia, 39

Bahamas, The, 81 Bankes, 34 Bartolus, 89 Basdevant, 141 Belgian case-law, 21-24, 109 Belgium, 33,41 Bentham, 138 Brazil,41 Brierly, 75 Brougham, 15 Brussels Convention (1926),41-45

Bulgaria, 22 Bynkershoek, 9

Campbell, 16 Canada (Canadian Act of 1982), 2, 3, 61,

95,102,115-132 passim, 133, 224-229

Canadian case-law, 158 note 33 Chile, 91,92, 101, 121 Choice of jurisdiction clause, 88 Choice of law clause, 88 Colliard, 74 Commercial activity, 21-23, 26, 46, 52,

53,56,87-88, 92, 117,121,127, 131-132, 136, 142, 143-144, 147. See: Private acts; Profit-seeking

Competence of local courts, see: Jurisdic-tion

Connecting factors, 80-86,118,147 Conseil d'Etat, 137 Contracts, 116-119 Copenhagen Conference of the ILA

(1950), 145 Cottenham, 15 Cross, 49 Crown Proceedings Act 1947 (U.K.), 76 Cub~38,56,91,92

Denmark, 24,41 Denning,46,48,50, 85, 91, 95 Developing countries, 39-40, 61 Domaine prive, 108 Domaine public, 108 Duguit,74 Dutch case-law, 110

Egypt (U.A.R.), 16, 110

238

Trade Agreement with the U.S.S.R., 100

Egyptian case-law, 26-33, 154 note 44 Employment, contracts of, 94-95, 117-

119 English case-law

Early decisions, 14-17 Later decisions, 34-36 Recent decisions, 45-51, 91-92, 95

Estonia, 41 European Convention (1972), 2, 115-131

passim, 133, 169-184 Execution, 107-112, 129-132, 142,143,

144, 147-148, 150 Executive branch

As only defendant in suits against states, 76

Federal Tort Claims Act (U.S.), 122 Fictions, legal, 138, 151 in fine, 163 note

69 Financial transactions, 22, 30, 57-58, 118 Fiore, 95 Foreign States

As object of coercion in forcible exe­cution, 108-109

Lack governmental functions in the territory of the forum state, 80, 121-122

Position of, assimilated to position of the forum state, 89-90,105, 164 note 85

Position of, assimilated to own posi­tion before own courts, 79, 105-106, 133-135

Physical presence of, distinguished from true immunity, 17-18

Varying degree of involvement of, in international trade requires weighted evaluation of their practice on immunity, 2-3

See: Private acts; Public acts, Public property

France, 33,41,61 French case-law

Early decisions, 38-39 Later and recent decisions, 57-61

Freyria, 13 7

Gentili,9 German case-law, 39, 43-44,110-111,

164 note 90, 165 note 100

Germany, 41 Goff,92 Governmental acts, see: Public acts Great Britain, lO, 14,41 Greece, 25, 28, 33, 109, 110, III Grotius,9

Hamburg session of the Institut (1891), 141

"Harvard Research", 142, 144 HilI,34 Hungary, 101

Immunity from execution, see: Execution Immunity from suit

Absence of rule of general internation­allaw on, 45, 135, 164 note 90, 165 note lOO

Absolute rule of, 34-39 "Active" aspect of, 99-100 Call for aboliton of, 103, 163 note 71 Disappearance of, disguised as mere re-

enumeration of exceptions to, 134

Distinguished from privileges attending physical presence of foreign states, 17-18

Distinguished from non-amenability of public property to adjudication, 37-38

Justification of, 79-80, 88-89 "Passive" aspect of, 99-101 Refutation of need for, 80-86, 92-94,

135-136 Restrictions on, disguised as voluntary

waiver, lOl Restrictive rule of, 13,21-34

India, 55 Institut de droit international, 141-142 International Bar Association, 143-144 International Law Association, 144-148,

231-235 International Law Commission of the U.N.,

39-40,93,95,96,103,134 Iran, 58-59 Italian case-law, 24-26 Italy, 36,41,58,109-110

Japan, 99 Jessup, 142 Jurisdiction

Decision on, takes precedence over

defence of immunity, 80-84 Immunity restricted to public acts

transmuted into lack of, 136 Lack of, for local courts over public

acts of foreign states, 80, 135 Lack of, renders issue of immunity

redundant, 84,151 Local state subject to, of its own courts,

76-78

Kelsen,74 Kingdom of the Serbs, Croats and Slo­

venes,41

Laski,73 Latvia,41 Lauterpacht, E., 163 note 71 Lauterpacht, Sir Hersch, 74, 89-91, 105 Law, The, as source of obligations for

foreign states, 126-127 Lawton, 47, 50 League of Nations, 95 Leigh, Monroe, 57, 164 note 85 Lex fori, 64, 142 Libya, 86 Local sovereign, no immunity for, 75-78

Mack,36 Macmillan, 36 Manila Conference of the ILA (1978),145 Mann, 134 Marshall, C.J., 10-12 Marshall Plan aid, 109 Merignhac, 95 Mexico, 25,41 Minimal jurisdictional contacts, see: Con­

necting factors Mixed Courts of Egypt, 26-33 Montreal Draft Convention of the ILA

(1982),145-148,231-235 Morocco, 39

Napoleon, 10 Netherlands, The, 14,22,41,43,109 Niboyet, 137 Nigeria, 49, 50, 82, 83, 155 note 78 Norway, 41,57

Ownership As source of obligations for foreign

states, 124-126

239

Pakistan, 47, 61, 85 Pakistani case-law, 157 note 9 Pakistani State Immunity Ordinance 1981,

2,94,95, 115-132 passim, 133, 142,150,211-217

Patents, 126 Permanent Court of International Justice

Decision of, on The Lotus case, 159 note 43

Peru, 22 Phillimore, 16, 17 Philippines, 39, 99, III Pinkney, 11 Poland, 41,101,161-162 note 62 Politis, 74 Portugal, 16,34,41 Possession

As source of obligations for foreign states, 124-126

Private acts Amenability to suit, 21 ff Distinction from public acts based on

the nature of the act, 23-24, 32-33, 61, 8~ 92-94, 135-136, 160 note 50

Objective universal criteria for distin­guishing, from public acts of foreign states, 63-70

Synonymous with "commercial" acts, 117

Private property of foreign states Availability of, for forcible execution,

109-112,131-132 Profit-seeking

"Commercial" acts of foreign states need not be motivated by, 117

Not a factor in distinguishing public acts from private acts, 63-70

Public acts Distinguished from private acts, 15, 18-

19, 21-26, 46, 48, 58,61, 86-87, 141, 143

Effects of, limited to territory of foreign state, 80, 92, 122, 159 note 43

Immunity with regard to, rendered redundant by lack of jurisdic­tion, 80, 84, 135, 151

Objective universal criteria for distin­guishing, from private acts of foreign states, 63-70

Public property of foreign states Non-amenability of, to adjudication

240

distinguished from true immu­nity,37-38

Public vessels Act 1925 (U. S.), 44 Purpose of foreign states' acts

Abandoned as test of their pu blic character, 23-24, 32-33,87,92-94,135-136, 160 note 50.

Qunin,75

Reciprocity, 4, 70, 100, 101-103, 106, 110, 135, 149

Romania, 33

Scarman, 47,50,51 Scelle, 74 Scrutton, 35 Shaw, 50, 51 Sinclair, Sir Ian, 17,35,47,105,162 note

62, 163 note 72 Singapore's State Immunity Act 1979, 2,

61, 94, 102, 115-131 passim, 203-209

Singleton, 46 Socialist doctrinal views, 64-65, 87, 94,

100-101, 103, 135, 157 note 18, 159 note 39 in fine, 162 note 66, 163 note 70

Sovereignty Concept of, 74 Criticism of, 74-75 Islamic view of, 75-76

Soviet Union, The, 25, 26, 31-32, 44-45 Government of, lacks immunity in the

in ternallegal order, 77-78 Treaty practice of, 100, 161 note 58

South Africa's Foreign State Immunities Act 1981,2,62-63,102,115-132 passim, 219-224

Spain, 29, 33, 35, 38, 41, 46,55,59,159 note 48

State As defendant, 76-77 Concept of, 73-74 Lacks immunity in the internal legal

order, 76-78 State-to-state relations

As only subject of public international law, 76, 89, 135

Stephenson, 50-51 Strupp, 145

Subject-matter jurisdiction, 137-138 Sucharitkul, Sompong, 17, 42, 154 note

35, 160 note 49 Sweden, 41 Swiss case-law, 85-86, 110,111,160 note

54, 165 note 100 in fine Switzerland, 33

"Tate letter", The, 37, 53-56, 61,153 note 2

Taxation, 126 Territorial Sea and Contiguous Zone,

Convention on, (1958), 45 Thankerton, 36 Torts

As a source of obligations for foreign states, 119-124, 133, 138, 150

Trading activities, see: Commercial activi-ties

Transnational contracts, 64-65, 68, 88 Tunisia, 24, 25 Turkey, 32,111

United Kingdom's State Immunity Act 1978,1,2,51-52,75,94,97,102, 115-132 passim, 134, 193-202

United States case-law Early decision, 10-14 Later decisions, 36-37, 55-56 Recent decisions, 80-84, 121-122

United States' Foreign Sovereign Immuni­ties Act 1976 (FSIA), 1, 2, 13,54, 56, 57, 58,81--84,94,97, 115-132 passim, 134, 185-191

U.S.S.R., see: Soviet Union

Vattel, 9,11,12 Venezuela, 55 Verhoeven, 136 Vienna Convention on Diplomatic Rela­

tions 1961, 101 Visscher, P. de, 136

Waiver Invoked in explanation of restrictions

on immunity, 101, 103-104 Waller, 91 Weiss, 31, 95 Wilberforce, 74, 155 note 54

Yugoslavia, 33, 11 0

CASES CITED

English, U.S. and Canadian Cases

Alfred Dunhill v. Republic of Cuba, 38, 56 Baccus v. Servicio Nacional del Trigo, 46 Charkieh, The, 16, 17 Chemical Natural Resources v. Republic of Venezuela, 54-55 Compania Mercantil Argentina v. United States Shipping Board, 47 Cristina, The, 35, 38,49 De Haber v. Queen of Portugal, 16 Duke of Brunswick v. King of Hanover, 15 De Leterier et al. v. The Republic of Chile, 121 Government of the Democratic Republic of the Congo v. Venne, 158 note 33 Heaney v. Government of Spain, 55 International Shoe Co. v. Washington, 80, 82 Isbrandtsen Tankers Inc. v. President of India, 55 Libyan American Oil Co. v. Socialist People's Libyan Arab Jamahiriya, 81, 84 McGee v. International Life Insurance Co., 80 Ownerr of the Ship "Philippine Admiral" v. Wallem Shipping (Hong Kong) Ltd. (1975),

48, 79 Parlement Beige, The, 16, 17, 34, 38 Pesaro, The, 36, 38 Perez et al. v. The Bahamas, 81 Porto Alexandre, 17,34,35,36,38,48 1° Congreso del Partido, The, 51, 91, 95 Prim Frederik, The, 14, 15, 16 Rahimtoola v. Nizam of Hyderabad, 46 Schooner Exchange, The v. M'Fadden and Otherr, 10, 12; 13, 14,31,32,36,38 Sultan of Johore v. Abubakar, 45 Texas Trading and Milling Corp. v. Federal Republic of Nigeria, 82 ThOs. P. Gonzalez Corp. v. Comrejo Nacional de Produccion de Costa Rica, 82 Thai·Europe Tapioca Service v. Government of Pakistan, 47, 50, 51 Trendtex Trading Corporation Ltd. v. Central Bank of Nigeria, 49 Verlinden B. V. v. Central Bank of Nigeria, 83, 84

Austrian Cases

Austrian Supreme Court, 10 February 1961, 160 note 52 Austrian Supreme Court (Dralle v. Republic ofCzechodovakia (1950)),165 note 100

242

Belgian Cases

Court of Appeals, Brussels, 1840, 21 Court of Appeals, Brussels, 1857,21-22 Court of Appeals, Brussels, 1876, 22 Court of Commerce in Ostend, 1878,22 Civil Court in Brussels, 1889, 22 Court of Appeals, Brussels, 1891,22 Cour de Cassation, 1903,22,23,29 Civil Court in Charleroi, 1927, 23 Brussels Court of First Instance (Socobelge Case), 1951, 109

Dutch Cases

The Hague Court of Appeals, 28 November 1968 (N. V. Cabolent v. National Iranian Oil Co.), 110

Hoge Raad, 26 October 1973 (Societe Europeenne d'Etudes et d'Entreprises v. the Socialist Republic of Yugoslavia), 110

Egyptian Cases

Mixed Court of Appeals, 1912, 28 Mixed Court of Appeals, 1920, 29 Alexandria District Court, 1924 (Caisse Nationale d'Epargne case), 30 District Court of Mansourah, 1924, 31 Court of RHeres in Cairo, 1929, 31 Court of RHeres in Alexandria, 1927 (The S.S. Costi case), 31-32 Court of Appeals, 1930 (Turkish Tobacco "Regie" case), 32 Court of Commerce in Alexandria, 1943 (The Comisaria General de Abastecimientos y

Transportes case), 32-33 Court of First Instance in Cairo, 1947, 33 Court of Appeals in Cairo, 4 May 1966, 154 note 44

French Cases

Courde Cassation, 1849,38 Courde Cassation, 1896, 39 Tribunal de Commerce, Paris, 1867,39 Court of Appeals, Paris, 1912, 39 Cour de Cassation (The Moroccan Loan Case, 1934), 39 Cour de Cassation (The Afghanistan Case, 1933), 39 Tribunal Civil de la Seine, June 16, 1955,57 Courde Cassation, October 5,1965,58 Courde Cassation, 1969,58 Cour de Cassation, 1973 (Hotel George V v. Spanish State), 59, 60 Court of Appeals, Paris (Iranian Railways Administration Case), 59 Courde Cassation, March 9,1979,60

German Cases

Reichsgericht, 1938 (The Visurgis and The Siena cases), 43-44 District Court of Frankfurt, 1975 (Central Bank of Nigeria case), 110 Constitutional Court, 1977, 111 Constitutional Court, 30 October 1962, 164 note 90 Constitutional Court, 13 December 1977, 165 note 100 Constitutional Court, 14 April 1983, 165 note 100

Italian Cases

Corte di Cassazione, Torino, 1882, 24 Corte di Cassazione, Florence, 1886,24 Corte di Cassazione, Naples, 1886,25 Corte di Cassazione, Rome, 1922,25 Corte di Cas:razione, 1925,25 Corte di Cassazione, 1928, 25 Court of First Instance, Rome, 1951, 26

Pakistani Case

Supreme Court, 1972 (Mir Baluch Khan v. Mst. Sol Bibi et al.), 157 note 9

Permanent Court of International Justice

The Case of the S.S. "Lotus", 159 note 43

Philippines Case

Supreme Court, 17 August 1949 (Syquia v., Almeda Lopez), 155 note 64

Polish Cases

Supreme Court, 14 December 1948, 101 Supreme Court, 26 March 1958, 162 note 62

Swiss Cases

Federal Court, 1960, 110

243

Federal Court, 1966 (Republic of Italy, the Italian Minister of Transport and the Italian State Railway:r v. Beta Holdings S.A.), 85

Federal Court, 15 November 1978, 111 Federal Court, 19 June 1980,86, 160 note 54