‘Article 4 The Regional Council shall be established as follows: First: The Prime Minister – President; Second: The Deputy Prime Minister – Deputy President; Third: The Minister of Natural Resources – Member; Fourth: The Minister of Finance and Economy – Member; and Fifth: The Planning Minister – Member. Article 5 The Regional Council shall perform the following functions: .. Second: approve Petroleum Contracts … Article 6 The Ministry [of Natural Resources] or its nominee shall: First: oversee and regulate Petroleum Operations. The responsibilities of the Ministry include the formulation, regulation and monitoring of Petroleum Operation policies, as well as the regulation, planning, implementation, supervision, inspection, auditing and for enforcement of all Petroleum Operations by all Persons and all activities relating thereto, including the marketing of Petroleum; and Second: negotiate, agree and execute all Authorisations, including Petroleum Contracts, entered into by the Regional Government. Article 7 The Minister [of Natural Resources] shall exercise his powers and discharge his functions under this Law, including under Authorisations made hereunder, in such a manner as: First: to ensure sound management of the petroleum industry; and Second: to ensure that the petroleum industry is developed in a way that minimises damage to the natural environment, is economically sustainable, promotes further investment and contributes to the long-term development of the Region; and is reasonable and consistent with good oil industry practices. … Article 24: First: The Minister may, after obtaining the approval of the Regional Council, conclude a Petroleum Contract for exploration and development in respect of a specified area, with a Person or a group of Persons … The Person, or group of Persons, may include private companies in the Region and other parts of Iraq or foreign petroleum companies. Second: A Petroleum Contract may be based on a Production Sharing Contract, or on other contracts which the Minister considers to provide good and timely returns to the people of the Region, as stated in Chapter 10 of this Law. Third: In order to be eligible to enter into a Petroleum Contract, a Person must demonstrate: (1) the financial capability, and the technical knowledge and technical ability, to carry out the Petroleum Operations in the Contract Area, including direct experience in carrying out similar petroleum operations, and to submit reliable documents as proof; and (2) a record of compliance with principles of good corporate citizenship, and a commitment to the Ten Principles of the Global Compact, launched by the United Nations on26 July 2000 . Fourth: (1) … a Petroleum Contract grants to the Contractor the exclusive right to conduct Petroleum Operations in the Contract Area. (2) The Petroleum Contract may be limited to Crude Oil, Natural Gas or other constituents of Petroleum. … Sixth: A Petroleum Contract shall oblige the Contractor to carry on Petroleum Operations only in accordance with work programs, plans and budgets approved by the Minister or as otherwise specified in the Contract.’
‘(A) The GOVERNMENT wishes to develop the petroleum wealth of the Kurdistan Region (as defined in this Contract) in a way that achieves the highest benefit to the people of the Kurdistan Region and all of Iraq, using the most advanced techniques of market principles and encouraging investment, consistent with the Constitution of Iraq including Article 112 thereof; (B) In accordance with the Constitution of Iraq, the prevailing law of the Kurdistan Region is the Kurdistan Region Law (as defined in this Contract), except with regard to a matter wholly within the exclusive jurisdiction of the Government of Iraq; … (I) WesternZagros Limited is a company, (i) with the financial capability, and the technical knowledge and technical ability to carry out Petroleum Operations in the Contract Area … under the terms of this Contract; (ii) having a record of compliance with the principles of good corporate citizenship; and (iii) willing to cooperate with the GOVERNMENT by entering into this Contract, thereby assisting the GOVERNMENT to develop the Kurdistan Region petroleum industry, thereby promoting the economic development of the Kurdistan Region and Iraq and the social welfare of its people.’
‘2.1 This Contract is a production-sharing arrangement with respect to the Contract Area, whereby the GOVERNMENT has the right, pursuant to the Constitution of Iraq, to regulate and oversee Petroleum Operations within the Contract Area. … 2.2 Upon the CONTRACTOR’
‘17.1 The GOVERNMENT shall make available to the CONTRACTOR any land or property in the Kurdistan Region required for the Petroleum Operations; provided, however, the CONTRACTOR shall not request to use any such land unless there is a real need for it. The CONTRACTOR shall have the right to build and maintain, above and below ground, any facilities required for the Petroleum Operations. 17.2 If it becomes necessary for conduct of the Petroleum Operations to occupy and use any land or property in the Kurdistan Region belonging to third parties, the CONTRACTOR shall endeavour to reach amicable agreement with the owners of such land. If such amicable agreement cannot be reached, the CONTRACTOR shall notify the GOVERNMENT. On receipt of such notification: a) the GOVERNMENT shall determine the amount of compensation to be paid by the CONTRACTOR to the owner, if occupation will be for a short duration; or b) the GOVERNMENT shall expropriate the land or property in accordance with applicable Kurdistan Region Law, if such occupation will be long lasting or makes it henceforth impossible to resume original usage of such land or property. ….’
‘Any CONTRACTOR Entity proposing to sell, assign, transfer or otherwise dispose of all or part of its rights and interests under this Contract to any such third party shall request such consent in writing, which request shall be accompanied by reasonable evidence of the technical and financial capability of the proposed third party assignee….’
‘ “Change of Control” for the purpose of this Article 39.7 means any direct or indirect change of the identity to the Person who Controls a CONTRACTOR Entity (whether through merger, sale of shares or of other equity interests, or otherwise) through a single transaction or series of transactions, from one or more transferors to one or more transferees, in which the market value of such entity’s participating interest … in this Contract represents more than seventy five per cent (75%) of the aggregate market value of the assets of such entity and its Affiliates that are subject to the Change in Control. … Each CONTRACTOR Entity which is or anticipates with a reasonable degree of certainty that it will be subject to a Change in Control, other than to an Affiliated Company or a CONTRACTOR Entity, shall notify the GOVERNMENT as soon as practicable after it becomes aware of the Change in Control or anticipated Change in Control and request the consent of GOVERNMENT, which consent shall not be unreasonably delayed or withheld. …’
‘In other words, when a constituent territory or other separate entity acts for and on behalf of the recognised state and effectively acts as if it was exercising the state’s sovereign authority, it obtains the immunity that the state would have obtained, had it acted on its own behalf.’
‘To internationally assert the sovereignty of the state of Iraq, in my opinion, the KRG must demonstrate (1) that it is the government of an internationally recognized state, or (2) that it has actual or apparent authority to do so granted it by the federal government in Baghdad, or (3) that it has actual or apparent authority to do so granted to it directly by the Iraqi federal constitution.’
‘[121] The first rule is that the courts of this country will recognise, and will not question, the effect of a foreign state’s legislation or other laws in relation to any acts which take place or take effect within the territory of that state.’
‘[189] … The purpose of this litigation is not to determine the validity of the foreign Constitution; that is not what the claim is about. It is to determine whether the claimant has been lawfully detained or not. In resolving that issue it is necessary to interpret certain provisions of the law of Iraq, and that includes its Constitution. To use Lord Diplock’s words, that issue comes in incidentally in proceedings in which the court plainly does have jurisdiction. The domestic law is simply interpreting the Constitution as a necessary step in determining the legal claim before it. The ruling, of course, has no effect at all on the courts of Iraq. They are not in any sense bound by the judgment. But the legal issues arising under Iraq law need to be resolved in order to decide a dispute which is properly before the courts. [190] As to the submission that it would infringe comity for the court to hear this claim, Mr Swift effectively sold the pass on this submission when he conceded that the position might be different if there were authorities from the courts in Iraq which had already provided an interpretation of these various provisions of the Constitution. He says that in those circumstances there would be a solid basis to enable the court to make a considered analysis of the relevant principles. However, if the underlying contention is that the need to respect comity should bar the court from questioning the terms of a foreign constitution, that justification does not change depending upon whether there are judicial authorities from the courts of Iraq to guide the British court. [191] A related argument was that the court simply has no proper standards with which to assess the dispute before them. Reliance is place on certain observations of the House of Lords in Buttes Gas and Oil Co v Hammer (No 3)[1982] AC 888 . … Suffice it to say that in my judgment this case is very far removed from the issue in dispute there. The courts are well able, with the assistance of expert evidence, to make findings on the meaning of foreign law, including its Constitution. It is something they do all the time. The lack of any authorities on the point does not alter matters.’
‘E. Managing the natural resources of Iraq, which belong to all the people of all the regions and governorates of Iraq, in consultation with the governments of the regions and the administrations of the governorates, and distributing the revenues resulting from their sale through the national budget in an equitable manner proportional to the distribution of population throughout the country, and with due regard for areas that were unjustly deprived of these revenues by the previous regime, for dealing with their situations in a positive way, for their needs, and for the degree of development of the different areas of the country.’
‘But it should be stressed that Article 112 Second, does not confer any legislative authority on the federal government, still less exclusive federal authority. Nor does it stipulate that no contracts are to be concluded for the management by a region of present or future fields until the strategic policies are agreed. Such a stipulation would give the federal government a veto over regional authority which the Constitution nowhere gives, outside the enumerated list of exclusive powers in Article 110…’
‘… the Sunni perspective, which clearly favoured a more central and integrated federal design, was not heard throughout this process [viz. the devising and negotiation of the Constitution’s terms up to and including summer 2005]. The Kurdish side, on the other hand, was heard very loudly. Given its association with the US during the phases of armed confrontation from 1990 through 2003, there was strong receptiveness for the plight of the Kurdish community. Moreover, this was translated into highly professional negotiating positions … and strategies, put forward with the expert assistance of highly experienced and senior advisers like Ambassador Galbraith and Professor O’
‘They [natural resources – oil and gas] are not in the exclusive federal list of powers, and to the extent that current resources are jointly managed, it is the region that will be preeminent. Meanwhile, regions would have exclusive rights over new oil and gas ventures. The constitution leaves the mechanisms for shared management to a forthcoming hydrocarbon law.’
‘It is apparent from Lord Wilberforce’s statement of principle that the ultimate test of what constitutes an act jure imperii is whether the act in question is of its own character a governmental act, as opposed to an act which any private citizen can perform.’
‘… the classification of the relevant act was taken to depend on its juridical character and not on the state’s purpose in doing it, save in cases where that purpose threw light on its juridical character.’
‘The defendant was responsible for supervising the provision of educational services to members of the United States armed forces in the United Kingdom and their families. He published the material alleged to be defamatory in the course of his duties. If the provision of the service in question was an official or governmental act of the United States, then so was its supervision by the defendant. I would hold that he was acting as an official of the United States in the course of the performance of its sovereign function of maintaining its armed forces in this country.’
‘… As the judge pointed out, the agreement contains many of the hallmarks of a commercial transaction, but the fact that it relates to the exploitation of oil reserves within the territory of the state suggests that it involved an exercise by the state of its sovereign authority in relation to its natural resources and so falls outside the realm of activities which a private person might enter into….’
‘… since a State can act only through individuals, if State immunity does not extend to protect officials acting in an official capacity immunity could easily be circumvented by simply bringing an action against the individual actor. If such proceedings were permitted in circumstances where the State itself would be immune if sued, the reality is that in most cases the State would have to stand behind its servant or agent and its immunity would be defeated.’
‘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.’
‘Service on a State entity, or a person in the service of the State, is not required to be by the special procedure.’
‘Leave is not necessary for service within the jurisdiction; for natural persons or even foreign incorporated companies who are agents of a foreign State service may be based on presence within the UK. In such cases the defendant will have to dispute the court’s jurisdiction and seek a declaration of no jurisdiction on the ground of State immunity.’
‘the courts of this country will recognise, and will not question, the effect of an act of a foreign state’s executive in relation to any acts which take place or take effect within the territory of that state.’
‘1. This Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii).’
‘First, if the claim is one based on ordinary civil law duties, which is to say, it originates in a private law relationship (contract, tort, maintenance), it will be a civil or commercial one, even when enforced by a public law entity. … Second, if the claim is brought against a defendant which performs the functions out of which the claim is brought as a matter of public law, it is unlikely, though not impossible, that the proceedings will be in a civil or commercial matter. This will be so even if the allegation made against the defendant is that it was negligent, or acted without legal excuse for what it did, in a way which is, in terms of its content, practically identical with duties owed by other persons in other contexts.’
‘… in particular the statement that it is more helpful to ask whether the claim is brought by or against a public law body acting as such or by or against it instead acting as any other private individual.’
‘The bank and its employees, the second and third defendants, were undoubtedly exercising public law powers. They were performing the role of an administrative authority carrying out governmental supervisory functions which had been delegated to the bank by the Dutch Government to protect the integrity of the financial system in the Netherlands…’
‘[21] … The claimants’ simple but only point within the permission to appeal granted by this court is that a claim for libel is a “civil matter”. This supposes that the question only has to address the nature of the claim which the claimant brings irrespective of the nature of the defendant, and the function which it was undertaking and from which the claimant’s claim derived. Dyson LJ has referred to the judgment of the Court of Justice in Sonntag’s case … and in Lechouritou’s case … and the matter to my mind is shortly and decisively, for present purposes, put in those judgements and in summary in para 31 of Lechtouritou’s case where the court said: “Thus, the court has held that, although certain actions between a public authority and a person governed by private law may come within the scope of the Brussels Convention, it is otherwise where the public authority is acting in the exercise of its public powers.” [22] In my judgment, in agreement with Dyson LJ, Tugendhat J came to the right decision as to the exercise by the defendants in this case of their public powers. …’
‘[95] The better view is that, depending on the circumstances as a whole, the burden can be satisfied by showing that there is a real risk that justice will not be obtained in the foreign court by reason of incompetence or lack of independence or corruption. Of course, if it can be shown that justice “will not” be obtained that will weigh more heavily in the exercise of the discretion in the light of all other circumstances. [96] Is the court able to find that justice will not, or may not, be done because of endemic corruption in the foreign system? … [97] Comity requires that the court be extremely cautious before deciding that there is a risk that justice will not be done in the foreign country by the foreign court, and that is why cogent evidence is required. But, contrary to the appellants’ submission, even in what they describe as endemic corruption cases, (ie where the court system itself is criticised) there is no principle that the court may not rule…. … [101] The true position is that there is no rule that the English court … will not examine the question whether the foreign court or the foreign system is corrupt or lacking in independence. The rule is that considerations of international comity will militate against any such finding in the absence of cogent evidence…’
‘[44] But this is no reason that allegations of the kind made by Ferrexpo need not be supported with evidence that enables the court to examine their basis, and which is sufficiently detailed and focused to justify them. In my judgment, some of Ferrexpo’s evidence, including evidence upon which Professor Koziakov relied, is not of this quality. Some of it could properly be described as mere “press or political comment” unsubstantiated by independent evidence …’
‘… What is required of the claimant is that he establish, by clear and cogent evidence, the grounds on which he says it would be unjust to leave him to go to a foreign court. An English court will not proceed on the basis of whisper or suggestion, and it will not be at all receptive to a general disparaging of a foreign court’s procedure. Despite the occasional surprising decision, it is only rarely that the strong presumption of a stay will be rebutted on these grounds.’
‘There can be no objection to this development if there is proper and focused evidence that the foreign court will not (or would be acting quite out of character if it were to) do justice according to the law. But “a real risk” may set the bar rather low. It immediately raises the question what manner of evidence would be needed to sustain such a contention, and the answer is that there is no answer. Evidence of judicial propensity in general, or of judicial propensity when one of the litigants is well connected, may suffice; rather less focused observations from organisations which have given themselves grand names and which compile ‘indexes of corruption’, for example, may be accorded rather less weight. But as the circumstances of each case will be individual, the question of how to discharge the burden of proof will vary from case to case.’