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Report No. 54

Execution-Present practice

1G.21. It may be stated that immunity1 is conceded by the majority of States2 with respect to measures of execution directed against the property of foreign states.3

1. The rule is usually stated as one of immunity; Cf. Lauterpacht The Problem of Jurisdictional Immunities of Foreign States, (1951) 28 B.Y.B.I.S. 220, 243.

2. See-

(a) Lauterpacht The Problem of Jurisdictional Immunities of Foreign States, (1951) 28 Bris Y.B. Intl Studies 220, 241, 250 to 272.

(b) The country-by-country sketch of the approaches of the various jurisdiction of sovereign immunity in Sucharitkul, State Immunities and Trading Activity (1959), pp. 162-256.

(c) Brownlie Public International Law, (1966), p. 286.

3. Sorensen, Hague Racueil, (1960) considers that the practice is not sufficiently uniform to support a customary rule.

Position in England as to execution

1G.22. In the Cristina1 the House of Lords ruled that a writ in rem, issued in Admiralty against a vessel in the control of a foreign Government for public purposes, implied a process against the possessory rights of a foreign sovereign. As a condition of obtaining immunity, it is sufficient if the foreign Government produces evidence showing "that its claim is not merely illusory, nor founded on a title, manifestly defective"2-3 It is not bound to give a complete proof of its proprietary or possessory title.

1. The Christina, 1938 AC 485.

2. See Juan Yesmal & Co. Inc. v. Government of Republic of Indonesia, 1955 AC 72: (1954) 3 All ER 236.

3. Cf. Republic of Maxico v. Hoffman, (1945) 324 US 30.

Position in some other countries as to execution

1G.23. But a few countries apply the doctrine of restricted immunity1 for acts jure gestionis at the stage of execution also.2 Also there is acute controversy as to the exemption of foreign trading vessels.

1. (a) Hostile to immunity for acts jure gestionis at least are Oppenheim 1-274; Sucharitkul, pp. 247-51, 262-63, 247-50; Gereis Mora, 42 Virginia LR (1956), 354-9; Lemonon, Annuaired Kull, 1 Inst. (1952 I) 28-31.

(b) Resolution in Annuaire de 1, Inst. 1954 II, 293, Art. 5; and Weilmann and Mc. Closker v. Chase Manhattan Bank, 192 NY Supp 2nd 469 (1959).

2. See the Belgian decision; Socobel v. Greek State, 1951 Int LR 18: 1952 JDI 244 (279).

Recommendation regarding notice to prospective plaintiff

1G.24. A suggestion made with the U.S.A. in mind may also be noted1-

"Now that the Department will have to make factual determinations in almost all cases, to decide whether the activity is 'sovereign' or 'private', in nature, it will have to establish some procedure for resolving these issues. All government procedure affecting private interests should provide for notice to the plaintiff and a chance to be heard, at least through a written argument. The need would be filled if the Department, after receiving a request for a suggestion from an appropriate representative of the foreign government, or for a ruling from the judge himself after determining that immunity was prima facie justified, sent a registered letter to counsel for the other side. The letter should advise him of the request and offer him a chance to appear in person or to file a brief within a limited time".

This appears to be a useful suggestion, and may be adopted, of course in a simpler form.

1. Michael H. Cardozo Sovereign Immunity, (1954) 67 Harvard Law Review,p. 617.

Recommendation

1G.25. The following redraft of section 86 is recommended, in order to carry out the limited amendments indicated above.

Suggested re-draft of section 86-

"86. (1) No foreign State may be sued in any Court otherwise competent to try the suit except with the consent of the Central Government certified in writing by a Secretary to that Government:

Provided that a person may, as a tenant of immovable property, sue without such consent as aforesaid a foreign State from which he holds or claims to hold the property.

(2) Such consent may be given with respect to a specified suit or to several specified suits or with respect to all suits of any specified class or classes, and may specify, in the case of any suit or class of suits, the Court in which the foreign State may be sued; but it shall not be given, unless it appears to the Central Government that the foreign State-

(a) has instituted a suit in the court against the person desiring to sue it, or

(b) by itself or another, trades within the local limits of the jurisdiction of the court, or

(c) is in possession of immovable property situated within those limits and is to be sued with reference to such property or for money charged thereon, or

(d) has expressly or impliedly waived the privilege accorded to it by this section.

(3) Except with the consent of the Central Government certified in writing by a Secretary to the Government no decree shall be executed against the property of any foreign State.

(4) The provisions of sub-sections (1), (2) and (3) shall apply in relation to-

(a) any Ruler of a foreign State:

(b) any ambassador or envoy of a foreign State:

(c) any High Commissioner of a Commonwealth country; and

(d) any such member of the staff or retinue of a foreign State or of the Ruler, ambassador or envoy of a foreign State or of the High Commissioner of a Commonwealth country as the Central Government may, by general or special order, specify in this behalf, as they apply in relation to a foreign State.

(5) The following persons shall not be arrested under this Code, namely-

(a) any Ruler of a foreign State;

(b) any ambassador or envoy of a foreign State;

(c) any High Commissioner of a Commonwealth country;

(d) any such member of the staff of retinue of a foreign State or of the Ruler, ambassador or envoy of a foreign State or of the High Commissioner of a Commonwealth country as the Central Government may, by general or special order, specify in this behalf.

(6) Where a request is made to the Central Government for the grant of any consent under this section, the Central Government shall before refusing to accept the request in whole or in part, give the person making the request a reasonable opportunity of being heard".

Section 87B

1G.26. Section 87B has been already amended1 very recently, and is now confined to a cause of action arising before the commencement of the Constitution.

1. The Rulers of Indian States (Abolition of Privileges) Act, 1972.



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