“(1) A state is immune from the jurisdiction of the courts of the United Kingdom 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.”
“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.”
“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 Articles 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).”
“1(a) In pursuance of the provisions of paragraph 1 of Article 24 thereof, the United Kingdom hereby declare that, in cases not falling within Articles 1 to 13, their courts and the courts of any territory in respect of which they are a Party to the Convention shall be entitled to entertain proceedings against another Contracting State to the extent that these courts are entitled to entertain proceedings against States not Party to the present Convention. This declaration is 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).”
“Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to pecuniary compensation for death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which is alleged to be attributable to the State, if the act or omission occurred in whole or in part in the territory of that other State and if the author of the act or omission was present in that territory at the time of the act or omission.”
“82. I am clear that it is the location of the act or acts causing the injury which is the issue under s 5, not the presence of the author of the act(s). ... There is no ‘presence requirement’ in s 5. When an instrument on immunity incorporates a presence requirement, this is done so expressly as in Article 11 of [the ECSI] and Article 12 of [the UNCSI]. … 84. Parliament’s omission of the presence requirement in s 5 could only have been intentional, given that it was legislating against the backdrop of [the ECSI] (which the UK signed in 1972). Parliament is sovereign and is free to legislate in a way which differs from an international treaty if it wishes to do so, as I shall explain in a moment. It plainly chose not to adopt the Article 11 model.” (Emphasis in original.)
“Taking a step back, it seems to me that to uphold the Defendant’s case would empty section 5 of much of its content. It would mean it would not apply except in the most straightforward of cases (eg, a road traffic accident involving a vehicle driven by an employee of a foreign embassy). But many, if not most, of the cases where a foreign state ought not to be immune will involve some tortious activity outside the UK…”
“34. In my judgment, as a straightforward use of language, the remote manipulation from abroad of a computer located in the United Kingdom is an act within the United Kingdom. The true position in such a case is that the agents of the foreign state commit acts both in this country and abroad. To distinguish between what happens abroad and what happens here, characterising the former as an act and the latter as merely the effect of the act, is artificial and unprincipled. The reality is that a foreign state which acts in this way is interfering here with the territorial sovereignty of the United Kingdom. … 40. In my judgment this conclusion is in accordance, not only with the language of section 5 of the 1978 Act, but also with the principles underpinning state immunity in international law. That is because the hacking by a foreign state of a computer located in this jurisdiction is an interference with the territorial sovereignty of the United Kingdom … … 43. In modern terms, the hacking of a person’s computer is equivalent to burglars breaking in and stealing the contents of their safe. Just as the latter is an act within the United Kingdom, so too is the former.”
“54. I agree with the judge that the language of section 5 is clear and unambiguous in this respect. A foreign state does not have immunity for personal injury caused by an act in the United Kingdom, even if other causative acts take place abroad. Since the language of the section is clear and unambiguous, there is no scope to arrive at a different interpretation based on the external aids on which Professor Sarooshi relied, although I also agree with Mr Silverstone that those aids do not support Bahrain’s interpretation. 55. I consider that the claimants’ interpretation of section 5 is in accordance with the fundamental principles of international law on which state immunity is based. Once again, a foreign state which hacks a computer located in the United Kingdom interferes with the territorial sovereignty of the United Kingdom even if some of the acts in question take place abroad. Legislation which is broadly similar to theState Immunity Act 1978 has been enacted in numerous jurisdictions and there are international conventions to similar effect, even if such legislation does not (or does not yet) represent customary international law. Accordingly, if State A interferes with the territorial sovereignty of State B by doing an act in State B which is liable to cause death or personal injury to persons in State B, it takes the risk that it will be subject to civil proceedings in State B. Such proceedings are in accordance with principles of international comity. … 64. As already explained, it is apparent from a comparison ofsection 5 of the 1978 Act with article 11 of the ECSI that Parliament deliberately departed from the terms of article 11. Section 5 is not concerned with ‘the facts’ which occasion the injury or damage, but with ‘an act’ of the foreign state, while the requirement for ‘the author of the injury or damage’ to be present in the forum state has been deliberately omitted. In these circumstances the terms of article 11 are of no real help in interpreting section 5. …”
“Exceptions to the immunity of the State represent a departure from the principle of sovereign equality. Immunity may represent a departure from the principle of territorial sovereignty and the jurisdiction which flows from it.”
“In cases such as the Lockerbie disaster where the whole damage and a substantive causative event occurs within the local court’s jurisdiction a strong argument can be made that immunity under section 5 of the SIA should be removed so as to enable the victims to sue in the English Court….”
“Applying this line of cases to section 5 it is open to an English court to hold that an act or omission which causes the explosion of an aircraft and loss of life in British airspace constitutes proceedings in respect of death or personal injuries caused by an act or omission within the UK, and hence is sufficient to remove State immunity under section 5.”
“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 theVisiting Forces Act 1952 ”
“96. Certain States which at present apply rules of qualified State immunity considered that Article 15, which provides that immunity must be accorded to States in all cases other than those falling within Articles 1 to 13, was too rigid either because some acts iure gestionis fall outside the cases covered by these articles, or because the connecting links prescribed in these articles do not correspond with rules of jurisdictional competence applied in those States. Article 24 permits States to derogate from the provisions of Article 15. Pursuant to paragraph 1, Contracting States have the option of declaring, by notification to the Secretary General of the Council of Europe, that their courts are to be entitled to entertain proceedings against other Contracting States to the extent that they may entertain such proceedings against third States; for this purpose, treaties concluded with third States which relate to problems of immunity, should not be taken into account. In other words, the regime applied by the courts of a State which has made the declaration will not be affected by the Convention, and can even continue to develop along its own lines. The declaration addressed to the Secretary General of the Council of Europe will not affect the immunity from jurisdiction enjoyed by foreign States in respect of acts done in the exercise of sovereign authority (acta iure imperii). … 97. However, the courts may not entertain proceedings within the “grey zone” (ie the matters not covered by Articles 1 to 13 which are subjected to jurisdiction in relations with non-Contracting States) if their jurisdiction can be based solely on an “exorbitant” ground of jurisdiction (paragraph 2: for further details, see the Annex).”
“When Parliament enacted the 1978 Act the exemption from immunity under section 3(1)(a) in respect of proceedings relating to a commercial transaction entered into by the state was not qualified by any requirement for a link between the transaction and the United Kingdom. This was not accidental.” (2) Lord Phillips explained that this was an exercise by the United Kingdom of its powers pursuant to its declaration under article 24(1) of the ECSI. (3) Section 4(1) provides that 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”
“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.”
“As the Act was passed to enable Her Majesty’s Government to give effect to the obligations in international law which it would assume on ratifying the Convention to which it was a signatory, the rule of statutory construction laid down in Salomon v. Customs and Excise Commissioners[1967] 2 QB 116 and Post Office v. Estuary Radio Ltd.[1968] 2 QB 740 is applicable. If there be any difference between the language of the statutory provision and that of the corresponding provision of the Convention, the statutory language should be construed in the same sense as that of the Convention if the words of the statute are reasonably capable of bearing that meaning.”
“… it is a principle of construction of United Kingdom statutes, now too well established to call for citation of authority, that the words of a statute passed after the Treaty has been signed and dealing with the subject matter of the international obligation of the United Kingdom, are to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the obligation, and not to be inconsistent with it.”
“Parliament may pass a law which mirrors the terms of the treaty and in that sense incorporates the treaty into English law. But even then, the metaphor of incorporation may be misleading. It is not the treaty but the statute which forms part of English law. And English courts will not (unless the statute expressly so provides) be bound to give effect to interpretations of the treaty by an international court, even though the United Kingdom is bound by international law to do so. Of course there is a strong presumption in favour of interpreting English law (whether common law or statute) in a way which does not place the United Kingdom in breach of an international obligation. As Lord Goff of Chieveley said in Attorney General v Guardian Newspapers Ltd (No 2)[1990] 1 AC 109 , 283: ‘I conceive it to be my duty, when I am free to do so, to interpret the law in accordance with the obligations of the Crown under [the Convention].’ But for present purposes the important words are ‘when I am free to do so’. The sovereign legislator in the United Kingdom is Parliament. If Parliament has plainly laid down the law, it is the duty of the courts to apply it, whether that would involve the Crown in breach of an international treaty or not.”
“The Court begins by observing that the notion that State immunity does not extend to civil proceedings in respect of acts committed on the territory of the forum State causing death, personal injury or damage to property originated in cases concerning road traffic accidents and other ‘insurable risks’. The limitation of immunity recognized by some national courts in such cases was treated as confined to acta jure gestionis(see, e.g., the judgment of the Supreme Court of Austria in Holubek v. Government of the United States of America (Juristische Blätter (Vienna), Vol. 84, 1962, p. 43; ILR, Vol. 40, p. 73)). The Court notes, however, that none of the national legislation which provides for a ‘territorial tort exception’ to immunity expressly distinguishes between acta jure gestionis and acta jure imperii. The Supreme Court of Canada expressly rejected the suggestion that the exception in the Canadian legislation was subject to such a distinction (Schreiber v. Federal Republic of Germany and the Attorney General of Canada, [2002] Supreme Court Reports (SCR), Vol. 3, p. 269, paras. 33–36). Nor is such a distinction featured in eitherArticle 11 of the European Convention or Article 12 of the United Nations Convention. The International Law Commission’s commentary on the text of what became Article 12 of the United Nations Convention makes clear that this was a deliberate choice and that the provision was not intended to be restricted to acta jure gestionis (Yearbook of the International Law Commission, 1991, Vol. II (2), p. 45, para. 8). Germany has not, however, been alone in suggesting that, in so far as it was intended to apply to acta jure imperii, Article 12 was not representative of customary international law. In criticizing the International Law Commission’s draft of what became Article 12, China commented in 1990 that ‘the article had gone even further than the restrictive doctrine, for it made no distinction between sovereign acts and private law acts’ (United Nations doc. A/C.6/45/SR.25, p. 2) and the United States, commenting in 2004 on the draft United Nations Convention, stated that Article 12 ‘must be interpreted and applied consistently with the time-honoured distinction between acts jure imperiiand acts jure gestionis’ since to extend jurisdiction without regard to that distinction “would be contrary to the existing principles of international law” (United Nations doc. A/C.6/59/SR.13, p. 10, para. 63). The Court considers that it is not called upon in the present proceedings to resolve the question whether there is in customary international law a ‘tort exception’ to State immunity applicable to acta jure imperii in general. The issue before the Court is confined to acts committed on the territory of the forum State by the armed forces of a foreign State, and other organs of State working in co-operation with those armed forces, in the course of conducting an armed conflict.”
“In current State practice, the jure imperii / jure gestionis dichotomy seems rather out of place with regard to jurisdiction over tortious conduct in the territory of the forum State. A number of states, chief among them the US and the UK, have abandoned the test altogether.”
“In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule” (para 186). It also made the following particularly pertinent observation: “[r]eliance by a State on a novel right or an unprecedented exception to the principle might, if shared in principle by other States, tend towards a modification of customary international law” (para 207). While it is necessary to be cautious in attaching weight to the inaction of states in failing to react to practice by other states as support for the customary status of that practice, “[t]olerance of a certain practice may indeed serve as evidence of acceptance as law (opinio juris) when it represents concurrence in that practice”, in particular when states were in a position to react and the circumstances called for some reaction (Draft conclusions on identification of customary international law, with commentaries, ILC Yearbook [2018] vol II(2), pp 103–104 (Conclusion 10(3) and comment 8)). In this regard we note that “[w]hen the State Immunity Bill was before … Parliament copies of it were sent to all diplomatic missions in London on two occasions. … No State which was sent the legislation in draft offered substantive criticism of its terms.”
“In recent times, the law had changed somewhat. In the past, the essential difference had been between acta jure gestionis and acta jure imperii and State immunity had fully applied in cases where the person responsible for the accident had been acting in an official capacity. That distinction had been largely abandoned, although it was still applied in Belgium and Egypt. In that connection, it was interesting to note the developments in United States judicial practice …”
“In some more or less precise way, the locus delicti commissi appears to afford an internationally accepted criterion for the assumption of jurisdiction and a sound basis for its exercise, if ever a general exception to State immunity is to become universally recognized in future State practice.”
“31. The pre-condition that the author of the act or omission must be present in the territory at the time of the act or omission seems to be unnecessary; it adds nothing in terms of logic, may well be unduly restrictive and creates difficulties if there is more than one author, not all of whom are so present at the time. 32. In the context of the exclusion of immunity, the place where the injury occurred should establish the necessary jurisdictional basis, unless a closer relationship can be shown to exist with the foreign State pleading immunity. Such an approach would have the advantage of being in harmony with the principle, expressed in a number of Anglo-Australian cases, as well as by the Court of the European Communities, that a court, in deciding whether to exercise jurisdiction over an action in tort, should identify where the substance of the cause of action arose.” (ILC Yearbook [1988] vol II (1), p 54). Of particular significance is the following observation by the Federal Republic of Germany: “The exclusion of immunity in the case of injuries or damage the author of which was present in the State where the injuries or damage occurred is in line with article 11 of the 1972 European Convention. There is, however, a danger of the reverse conclusion being drawn that immunity can always be invoked for transborder injuries or damage. It must be made clear … that this is not the case.”
“The most important requirement in the context of tort is a territorial connection between either the tortious act/omission or the resultant injury/damage, or both, and the forum State. In short, when torts committed in the forum State are concerned, the overriding consideration for a court is neither a jure imperii / jure gestionis test nor whether ‘insurable’ personal injury is at issue, but whether the tortious act or omission has a connection with the territory of the forum State.”
“If a foreign state is committing torts within Canadian controlled boundaries, Canada has the competence (derived from its independence) to bring the foreign state within Canada’s adjudicative jurisdiction. There would thus be sufficient connection with the forum state to justify bringing the foreign state’s actions under Canadian scrutiny.”
“The fact that the agents who caused this to happen were located in Bahrain at the time, if that proves to be the case, is immaterial. It is equally immaterial whether whatever was done in Bahrain was lawful under the law of Bahrain. The act of state principle does not protect a state which chooses, by an act committed within the United Kingdom, to infringe the territorial sovereignty of this country.”
“I make no decision on the composite act submission eg whether firing a missile from country A into another country B is an act in both countries for the purposes of section 5. It is not necessary for me to decide that point since it does not arise on the facts of any of the cases before me.”
“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…”
“Section 5 of the 1978 Act is based on the European Convention on State Immunity, Art. 11. [It] is limited to acts or omissions in the United Kingdom, and that limitation is not incompatible with the European Convention on Human Rights, Art. 6(1). [It] concerns acts or omissions in the United Kingdom, and does not involve consideration of the place where the substance of the wrong occurred. … Consequently if agents of a foreign State on an intelligence mission in England commit acts within England that cause personal injury or death to someone in England, then neither they or the foreign State will be entitled to immunity.” (Emphasis added.)
“The act or omission referred to in s 5 could be construed as being either (i) the wrongful act of (or on behalf of) the State on which the claimant’s action is based, or (ii) the immediate cause of the injury in respect of which the claimant sues. On balance, the former view is to be preferred, on the basis that it focuses on the State’s conduct within the territory in question.”
“Notes on clauses when not cited in debate are private documents not available to the public at large, unlike White Papers, statements reported in Hansard and published Explanatory Notes. An Act of Parliament creates law applicable to all citizens. In my judgment, it is fundamental that all materials which are relevant to the proper interpretation of such an instrument should be available to any person who wishes to inform himself about the meaning of that law. That is not the position in relation to notes on clauses and for that reason I do not consider they are a legitimate aid to construction of an Act of Parliament. …”
“To distinguish between what happens abroad and what happens here, characterising the former as an act and the latter as merely the effect of the act, is artificial and unprincipled. The reality is that a foreign state which acts in this way is interfering here with the territorial sovereignty of the United Kingdom.”
“(1) Transmitting executable files for installing FinSpy on the SS Computer and the MM Computer (‘the Devices’), which were at all material times located in England. (2) Installing FinSpy on the Devices, including by overwriting the hard disk and/or Master Boot Record with malicious code. (3) Running the spyware on the Devices. (4) Executing FinSpy to the Devices’ Central Processing Units, and reading data to, and writing it from, the Devices’ Random Access Memory. (5) Storing information gathered by the spyware on the Devices’ hard disks. (6) Using the Devices’ computer network interface controller to send and receive data via a wired or wireless network and telecommunications equipment within the UK. (7) Using the Devices’ battery power to transmit and receive data and commands, and to use other hardware components in the Devices. (8) Exfiltrating or causing to be exfiltrated information held on, available from and/or transmitted via the Devices. (9) Activating or causing to be activated the Devices’ microphones and/or cameras, and recording information with the same. (10) Recording and transmitting keystrokes and mouse movements made on the Devices.”
“I also consider that substantial and efficacious acts occurred in London, as well as Russia. That is where the hacking occurred and access to the server was achieved. This may have been as a result of actions taken in Russia but they were designed to make things happen in London, and they did so. Effectively the safe was opened from afar so that its contents could be removed. It would be artificial to say that the acts occurred only in Russia. On the contrary, substantial and effective acts occurred in London.”
“…the operation of the keyboard by a computer operator produces a virtually instantaneous result on the magnetic disk of the computer even though it may be 10,000 miles away. It seems to us artificial to regard the act as having been done in one rather than the other place. But, in the position of having to choose on the facts of this case whether, after entering the computer in Parsipenny, the act of appropriation by inserting instructions on the disk occurred there or in St Petersburg, we would opt for Parsipenny. The fact that the applicant was physically in St Petersburg is of far less significance than the fact that he was looking at and operating on magnetic disks located in Parsipenny. The essence of what he was doing was done there.”
“Personal injuries and damage to property 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.”
“The court’s approach to statutory interpretation is well established in our case law. The court derives the meaning of a legislative provision from the words which Parliament has used in that provision having regard to the context of the statute as a whole and the historical context in which the statute was enacted as the context may reveal the mischief which the provision addresses and shed light on its purpose.”
“Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life. The court’s task, within the permissible bounds of interpretation, is to give effect to Parliament’s purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment.”
“The conclusion which emerges is that in considering, under the ‘restrictive’ theory whether state immunity should be granted or not, the court must consider the whole context in which the claim against the state is made, with a view to deciding whether the relevant act(s) upon which the claim is based, should, in that context, be considered as fairly within an area of activity, trading or commercial, or otherwise of a private law character, in which the state has chosen to engage, or whether the relevant act(s) should be considered as having been done outside that area, and within the sphere of governmental or sovereign activity.”
“a foreign government’s deployment of clandestine agents to collect foreign intelligence on its behalf … is the sort of peculiarly sovereign conduct that all national governments (including our own) assert the distinctive power to perform.”
“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.”
“Notwithstanding the provisions of Article 15, any State may … declare that, in cases not falling within Articles 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).”
“must have been intended to recognise the inapplicability in English law of the principle of sovereign immunity in cases in which the sovereign was not acting jure imperii, as had by then been recognised both in The Philippine Admiral[1977] AC 373 and in the Trendtex case[1977] QB 529 , though the authoritative statement of the law by Lord Wilberforce in I Congreso del Partido[1983] 1 AC 244 , 262, was not then available.”
“the word ‘conduct’ would normally and naturally be understood as a synonym for acts done by the requested person in the specified location and not as including effects (whether intended or not) felt in that location of acts done somewhere else. A compelling reason is needed to interpret ‘conduct’ as bearing such an abnormally wide meaning.”
“… the operation of the keyboard by a computer operator produces a virtually instantaneous result on the magnetic disk of the computer even though it may be 10,000 miles away. It seems to us artificial to regard the act as having been done in one rather than the other place. But, in the position of having to choose on the facts of this case whether, after entering the computer in Parsippany, the act of appropriation by inserting instructions on the disk occurred there or in St Petersburg, we would opt for Parsippany. The fact that the applicant was physically in St Petersburg is of far less significance than the fact that he was looking at and operating on magnetic disks located in Parsippany. The essence of what he was doing was done there. Until the instruction is recorded on the disk, there is in fact no appropriation of the rights of [the account holder].”
“That is where the hacking occurred and access to the server was achieved. This may have been as a result of actions taken in Russia but they were designed to make things happen in London, and they did so. Effectively the safe was opened from afar so that its contents could be removed. It would be artificial to say that the acts occurred only in Russia. On the contrary, substantial and effective acts occurred in London.”
“To distinguish between what happens abroad and what happens here, characterising the former as an act and the latter as merely the effect of the act, is artificial and unprincipled. The reality is that a foreign state which acts in this way is interfering here with the territorial sovereignty of the United Kingdom.”
“if a man in the state of South Carolina criminally fires a ball into the state of Georgia, the law regards him as accompanying the ball, and as being represented by it, up to the point where it strikes.”
“The language of [an international convention] … is meant to be understood in the same sense by the courts of all those states which ratify or accede to the Convention. Their national styles of legislative draftsmanship will vary considerably as between one another. So will the approach of their judiciaries to the interpretation of written laws … The language of an international convention has not been chosen by an English parliamentary draftsman. It is neither couched in the conventional English legislative idiom nor designed to be construed exclusively by English judges. It is addressed to a much wider and more varied judicial audience …”
“3 Commercial transactions and contracts to be performed in United Kingdom. (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) … (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; …” (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. (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; …”
“the terms ‘commercial transaction’ and ‘activity otherwise than in the exercise of sovereign authority’ are positive and negative definitions of the same concept; a comprehensive dichotomy is thus set up by the statute by which all acts not amounting to commercial transactions constitute acts in exercise of sovereign authority. This dichotomy between acts jure imperii and jure gestionis is elaborated by the addition of the descriptive words ‘commercial, industrial, financial, professional, or other similar character’ so as to embrace the widest conception of private law or commercial acts.”
“Arbitrations. (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. (2) This section has effect subject to any contrary provision in the arbitration agreement and does not apply to any arbitration agreement between States.”
“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 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.”
“Section 3 enables language to be interpreted restrictively or expansively. But section 3 goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant. In other words, the intention of Parliament in enacting section 3 was that, to an extent bounded only by what is ‘possible’, a court can modify the meaning, and hence the effect, of primary and secondary legislation.”
“In the present context, state practice of particular significance is to be found in the judgments of national courts faced with the question whether a foreign state is immune, the legislation of those states which have enacted statutes dealing with immunity, the claims to immunity advanced by states before foreign courts and the statements made by states, first in the course of extensive study of the subject by the International Law Commission and then in the context of the adoption of the United Nations Convention. Opinio Juris in this context is reflected in particular in the assertion by states claiming immunity that international law accords them a right to such immunity from the jurisdiction of other states; in the acknowledgment, by states granting immunity, that international law imposes upon them an obligation to do so; and, conversely, in the assertion by states in other cases of the right to exercise jurisdiction over foreign states.”
“Personal injuries and damage to property Unless otherwise agreed between the States concerned, a State cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to pecuniary compensation for death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which is alleged to be attributable to the State, if the act or omission occurred in whole or in part in the territory of that other State and if the author of the act or omission was present in that territory at the time of the act or omission.”
“The deletion of the second territorial criterion, as proposed by the Special Rapporteur, was not considered appropriate, since transboundary damage normally gave rise to international disputes which had to be settled by recourse to international law and not to the law applicable in a forum State.”
“The basis for the assumption and exercise of jurisdiction in cases covered by this exception is territoriality. The locus delicti commissi offers a substantial territorial connection regardless of the motivation of the act or omission, whether intentional or even malicious, or whether accidental, negligent, inadvertent, reckless or careless, and indeed irrespective of the nature of the activities involved, whether jure imperii or jure gestionis. This distinction has been maintained in the case law of some states involving motor accidents in the course of official or military duties. While immunity has been maintained for acts jure imperii, it has been rejected for acts jure gestionis. The exception proposed in article 12 makes no such distinction, subject to a qualification in the opening paragraph …”
“the exclusion from the application of this article of cases of transboundary injuries or trans-frontier torts or damage, such as export of explosives, fireworks or dangerous substances which could explode or cause damage through negligence, inadvertence or accident. It is also clear that cases of shooting or firing across a boundary or of spill-over across the border of shelling as a result of an armed conflict are excluded from the areas covered by article 12. The article is primarily concerned with accidents occurring routinely within the territory of the state of the forum, which in many countries may still require specific waiver of state immunity to allow suits for recovering damages to proceed, even though compensation is sought from, and would ultimately be paid by, an insurance company.”
“This interpretation of international law, upholding immunity for acta jure imperii, had been followed by the courts of a number of other European countries in recent years, for example Austria, France, Germany, Italy, Spain and Switzerland. The fact that only a limited number of countries had ratified or acceded to the [European Convention] could be taken as an indication that many States were not willing to countenance all the exceptions to the doctrine of State immunity set out therein.”
“the existing state legislative practice … presently falls short of a general state practice supported by opinio juris required to create a new exception to the rule of customary international law supporting immunity for acts of a sovereign character.”
“Personal injuries and damage to property 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.”
“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.”
“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.”
“As the Act was passed to enable Her Majesty’s Government to give effect to the obligations in international law which it would assume on ratifying the Convention to which it was a signatory, the rule of statutory construction laid down in Salomon v Customs and Excise Commissioners[1967] 2 QB 116 and Post Office v Estuary Radio Ltd[1968] 2 QB 740 is applicable. If there be any difference between the language of the statutory provision and that of the corresponding provision of the Convention, the statutory language should be construed in the same sense as that of the Convention if the words of the statute are reasonably capable of bearing that meaning.”
“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 theVisiting Forces Act 1952 .”
“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 Articles 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).”