“(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; (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”
“The crucial question of construction for your Lordships is whether a debt which has these legal characteristics falls within the description contained in section 13(4) of ‘property which is for the time being in use or intended for use for commercial purposes.’ To speak of a debt as ‘being used or intended for use’ for any purposes by the creditor to whom the debt is owed involves employing ordinary English words in what is not their natural sense, even if the phrase ‘commercial purposes’ is given the ordinary meaning of jure gestionis in contrast to jure imperii that is generally attributed to it in the context of rights to sovereign immunity in public international law; though it might be permissible to apply the phrase intelligibly to the credit balance in a bank account that was earmarked by the state for exclusive use for transactions into which it entered jure gestionis. What is clear beyond all question is that if the expression ‘commercial purposes’ in section 13(4) bore what would be its ordinary and natural meaning in the context in which it there appears, a debt representing the balance standing to the credit of a diplomatic mission in a current bank account used for meeting the day-to-day expenses of running the mission would fall outside the subsection. ‘Commercial purposes,’ however, is given by section 17(1) the extended meaning which takes one back to the comprehensive definition of ‘commercial transaction’ in section 3(3). Paragraph (a) of this tripartite definition refers to any contract for the supply of goods or services, without making any exception for contracts in either of these two classes that are entered into for purposes of enabling a foreign state to do things in the exercise of its sovereign authority either in the United Kingdom or elsewhere. This is to be contrasted with the other paragraph of the definition that is relevant to the instant case, paragraph (c), which on the face of it would be comprehensive enough to include all transactions into which a state might enter, were it not that it does specifically preserve immunity from adjudicative jurisdiction for transactions or activities into which a state enters or in which it engages in the exercise of sovereign authority, other than those transactions that are specifically referred to either in paragraph (a) or in paragraph (b), with the latter of which the instant appeal is not concerned. … My Lords, the decisive question for your Lordships is whether in the context of the other provisions of the Act to which I have referred, and against the background of its subject matter, public international law, the words ‘property which is for the time being in use or intended for use for commercial purposes,’ appearing as an exception to a general immunity to the enforcement jurisdiction of United Kingdom courts accorded by section 13(2) to the property of a foreign state, are apt to describe the debt represented by the balance standing to the credit of a current account kept with a commercial banker for the purpose of meeting the expenditure incurred in the day-to-day running of the diplomatic mission of a foreign state. Such expenditure will, no doubt, include some moneys due under contracts for the supply of goods or services to the mission, to meet which the mission will draw upon its current bank account; but the account will also be drawn upon to meet many other items of expenditure which fall outside even the extended definition of ‘commercial purposes’ for which section 17(1) and section 3(3) provide. The debt owed by the bank to the foreign sovereign state and represented by the credit balance in the current account kept by the diplomatic mission of that state as a possible subject matter of the enforcement jurisdiction of the court is, however, one and indivisible; it is not susceptible of anticipatory dissection into the various uses to which moneys drawn upon it might have been put in the future if it had not been subjected to attachment by garnishee proceedings. Unless it can be shown by the judgment creditor who is seeking to attach the credit balance by garnishee proceedings that the bank account was earmarked by the foreign state solely (save for de minimis exceptions) for being drawn upon to settle liabilities incurred in commercial transactions, as for example by issuing documentary credits in payment of the price of goods sold to the state, it cannot, in my view, be sensibly brought within the crucial words of the exception for which section 13(4) provides.”
“56. The test in section 13(4) of the State Immunity Act applies as at the date of the issue of process of execution against the property in question: the words ‘for the time being’ make this clear. The use or intended use of property may change over time. In the case of a bank account, the onus is on the judgment creditor to show that the use or intended use of the account is, apart from minimal exceptions, for commercial purposes within the meaning of the Act: Lord Diplock in Alcom at page 604D-E. Evidence of recent use of an account wholly for commercial purposes over a significant period of time may lead to the conclusion that the account is used or intended for use wholly for commercial purposes; but the older the use in evidence, the weaker the inference that may be drawn as to the use or intended use of the account. 57. The High Commissioner's certificate is supplemented by the witness statement of Mr Francis Ogunyinka, the then Finance Attaché of the Nigeria High Commission in London, corrected by the witness statement of Mr Lerer dated19 May 2003 , as to the previous use of the accounts. That evidence shows that in respect of some accounts, such as 21229656, which was used for the purchase of books for Nigerian government schools, the previous use was commercial. In some cases, such as account 31163507, where the use was for scholarships, the use was clearly not commercial. In other cases no clear conclusion as to the nature of the previous use can be drawn. For example, account 36122968 was ‘used for the purpose of payment of expenses of Federal Government officials’. If payment was made direct to third parties for goods or services supplied to Federal Government employees, the payment would be commercial in nature; if the payment were made to employees pursuant to their contracts of employment to reimburse them for expenses they had incurred, the purpose would be non-commercial: see section 3(3) of the State Immunity Act. 58. A mere statement that an account is dormant begs the question of the duration of the dormancy. In this case, however, the period of dormancy is specified in the certificate of the High Commissioner. If an account has been dormant for at least 18 months, it cannot be said to be presently used for any relevant purpose, and the previous use is weak evidence of the present intention as to its use. In this case, that evidence is insufficient to disprove the statement in the High Commissioner's certificate. 59. For the reasons set out above, even where there is evidence that an account was previously wholly used for commercial purposes, it does not establish that the present or intended use of that account is commercial. ”
“(1) The London assets formed part of the national fund. That fund was, in my opinion, created to assist in the management of the economy and government revenues of Kazakhstan, both in the short and long term. Management of a state's economy and revenue must constitute a sovereign activity. (2) The national fund had to be managed by NBK in accordance with the law set out in the Budget Code, in particular article 24. That demanded that the national fund be invested: article 24, para 2. I accept that this required that investment to be placed in authorised financial assets in order to secure, amongst other things, ‘high profitability levels of the [national fund] in the long term outlook at reasonable risk levels’. I also accept the uncontroverted evidence that the securities accounts held by AAMGS on behalf of NBK were actively traded at all times and that NBK obtained from Kazakhstan a commission on good results and paid a penalty for poor ones. But I cannot accept that this activity is inconsistent with the Stability and Savings Funds of the national fund being used or intended for use for sovereign purposes. The aim of the exercise, at all times, was and is to enhance the national fund. To do that the assets have to be put to use to obtain returns which are reinvested in the national fund, i.e. to assist the sovereign actions. (3) Mr Salter relies on the definition of ‘commercial purposes’ set out in section 17(1) of the 1978 Act and points to the fact that ‘commercial purposes’ means transactions and activities mentioned in section 3(3) of the Act. Those include ‘any transaction or activity (whether of a commercial… financial… or other similar character) into which a state enters or in which it engages otherwise in the exercise of sovereign authority’. He says that the trading activities of the securities accounts by AAMGS are clearly financial transactions and their aim is to make profits. Therefore they could not be transactions ‘in the exercise of sovereign authority’ within section 3(3). So, for the purposes of 13(4), at least the securities accounts of the London assets constitute ‘property in use or intended for use for commercial purposes’. Again, I must disagree. The dealings of the securities accounts must, in my view, be set against the background of the purpose of the global custody agreement. That was established to assist in running the national fund. The securities accounts contain assets which are part of the national fund. In my view the dealings are all part of the overall exercise of sovereign authority by Kazakhstan. (4) Last, but not least, there is the certificate of the ambassador. That is clear and unambiguous. I have seen no evidence to contradict it other than the fact that the securities accounts are traded. For the reasons I have given, the trading of those accounts does not mean they were being used or were intended for use for commercial purposes.”
“22. [Counsel for Orascom] relies on the assistance of the authors of State Immunity (OUP), Andrew Dickinson, Rae Lindsay and James Loonam. They point out, at p. 359, para. 4.030 (in a passage which commences with an obvious but unfortunate typographical error in referring to s. 3(1)(c) which is clearly intended to refer to s. 3(3)) that the language of s. 3(3)(a) is very broad, and in particular, in relation to s. 3(3)(b) , that: ‘Two aspects of this element of the definition are of note. The first is that the provision of finance may be either by or to the State. [emphasis added]’ 23. I am entirely satisfied that this account, the Borrower's Account, was established by the RMP, and has been operated, specifically for the purposes of a commercial transaction, namely: (i) so as to receive the proceeds of a contract for the supply of goods or services; and/or (ii) so as to be part of a system specifically established for the purposes of (repayment of) the loans by the World Bank etc to Chad.” ‘Two aspects of this element of the definition are of note. The first is that the provision of finance may be either by or to the State. [emphasis added]’ (i) so as to receive the proceeds of a contract for the supply of goods or services; and/or (ii) so as to be part of a system specifically established for the purposes of (repayment of) the loans by the World Bank etc to Chad.”
“The Republic of Iraq today announced its intention to offer to settle outstanding Saddam-era commercial claims against Iraq and Iraqi public sector obligors through a cash buyback (for claims holding a relatively small aggregate amount of registered claims) and a debt-for-debt exchange (for claimants with a larger aggregate amount of registered claims). … Eligible Claims … Eligible claims include claims against Rafidain Bank … The Cash Offer Subject to the availability of sufficient funds, Iraq expects to make a cash buyback offer to holders of smaller aggregate amounts of reconciled eligible claims. For this purpose, a claimant currently registered with Ernst & Young with reconciled eligible claims will be eligible to receive the cash buyback offer if the aggregate amount of its outstanding registered claims as of August 6, 1990 is U.S.$35 million or less (or its equivalent in other currencies). … The cash purchase price for reconciled eligible claims held by claimant eligible for the cash buyback will equal 10.25% of the reconciled outstanding amount of those claims (including principal and accrued interest…) … The Debt-for-Debt Exchange Offer For claimants holding an aggregate amount of eligible claims above the U.S.$35 million threshold referred to above (as of August 6, 1990), Iraq expects to make an offer to exchange the reconciled eligible amounts of those claims (principal plus calculated interest accrued through the date of exchange) for two new debt instruments: a syndicated loan or a privately-placed bond. The Republic of Iraq will be the obligor under both instruments. … The privately-placed bond will also have a maturity of January 2028, but will be exchanged at a 20% exchange ratio (that is for each$100 reconciled amount of tendered eligible claims, including calculating interest accrued through the date of exchange as described above, the tendering holder will receive a new bond with a$20 face value). Principal amortizations of the new bond will commence, in equal semi-annual instalments, in July 2020. …”
“On the terms and subject to the conditions set forth in this invitation (the ‘Invitation’), the Republic of Iraq, acting through its Ministry of Finance (‘Iraq’), hereby invites the entity identified as the Holder in Schedule I attached to this Invitation to tender for cash all of the Reconciled Eligible Claims listed in Schedule I (such claims, the ‘Reconciled Eligible Claims’, and the tender thereof, the ‘Tender’) for exchange for the New Notes (as further described below under ‘Consideration’) (the ‘Exchange Offer’). Eligible claims registered in response to the RFI (as defined below) for which Rafidain Bank has been identified as a Specified Obligor on the Holder’s Schedules I and II are referred to herein as ‘Rafidain Claims’. For the avoidance of doubt the term ‘Rafidain Claims’ as used in this Invitation covers claims against Rafidain Bank, including principal, contractual interest, late penalty interest, indemnities, fees and any other amounts of whatever description due according to the underlying debt instruments governing such claims. All of the Holder’s right, title and interest in claims that are the subject of an accepted Tender will, on the Closing Date (as described below): (i) in the case of Rafidain Claims be sold, assigned and transferred to Iraq without recourse to the Holder and without the need for the execution of any other instrument of assignment;… ”
“The Security Council … Recognizing the benefits to Iraq of the immunities and privileges enjoyed by Iraqi oil revenues and by the Development Fund for Iraq, and noting the importance of providing for continued disbursements of this fund by the Interim Government of Iraq and its successors upon dissolution of the Coalition Provisional Authority, … Acting under Chapter VII of the Charter of the United Nations, … 24. Notes that, upon dissolution of the Coalition Provisional Authority, the funds in the Development Fund for Iraq shall be disbursed solely at the direction of the Government of Iraq, and decides that the Development Fund for Iraq shall be utilized in a transparent and equitable manner and through the Iraqi budget including to satisfy outstanding obligations against the Development Fund for Iraq, that the arrangements for the depositing of proceeds from export sales of petroleum, petroleum products, and natural gas established in paragraph 20 of resolution 2483 (2003) shall continue to apply, that the International Advisory and Monitoring Board shall continue its activities monitoring the Development Fund for Iraq …”
“(1) Except as provided in paragraph (2), the Development Fund for Iraq, its property and assets wherever located and by whomsoever held (including any rights or obligations owned by or to the Development Fund for Iraq), shall have the like privileges and immunities as the United Nations underPart II of the United Nations and International Court of Justice (Privileges and Immunities) Order 1974 . (2) The Development Fund for Iraq shall not have immunity from suit and legal process concerning liability for damages in connection with an ecological accident, including an oil spill, which occurs after22nd May 2003 .”
“5. The United Nations shall have the legal capacities of a body corporate. 6. Except in so far as in any particular case it has expressly waived its immunity, the United Nations shall have immunity from suit and legal process. No waiver of immunity shall be deemed to extend to any measure of execution.”