Lloyd's Maritime and Commercial Law Quarterly
THE NON-JUSTICIABILITY OF FOREIGN SOVEREIGN CLAIMS
Mbasogo v. Logo
On 7 March 2004, authorities in Zimbabwe arrested various persons at Harare Airport, including Mr Simon Mann, a sometime English resident. Arrests followed in Equatorial Guinea. The effect was to forestall execution of a suspected coup d’état
by which the Government of Equatorial Guinea was to be overthrown and its President, Teodoro Obiang Nguema Mbasogo, replaced by Mr Severo Moto, an exiled citizen resident in Spain.
The immediate threat having passed, the authorities in Equatorial Guinea began to litigate. Suspecting an English conspiracy, English proceedings were brought. The claimant state alleged intentional infliction of harm by unlawful means and conspiracy, and sought to recover the costs incurred in responding to the conspiracy, in detaining and prosecuting suspects, in increasing security and in respect of damage to the state’s infrastructure and commercial activities. Injunctive relief was also sought. In addition to Mann and Moto, the claim form was served on Mann’s Caribbean companies Logo Ltd and Systems Design Ltd, and Messrs Wales and Calil, both of whom were resident in England.
Davis J struck out most of the claims as disclosing no reasonable cause of action. He refused to strike out the claim for injunctive relief on the basis that the court had jurisdiction1
to restrain interference with rights of person and property.2
The claimants appealed.
In the meantime, the Privy Council delivered its opinion in President of the State of Equatorial Guinea
v. Royal Bank of Scotland International
.3
In Guernsey proceedings, disclosure orders had been sought against the bank, which held accounts for the Caribbean companies alleged to have been used to fund the coup. The Lieutenant Bailiff granted the orders which the Guernsey Court of Appeal had set aside, as the Privy Council saw it, in a manner unbefitting an appellate court.4
Having disposed of the appeal before it, the Privy Council observed that neither it nor the Guernsey courts had heard submissions concerning their jurisdiction to grant an order which might be thought to enforce foreign public law.5
Citing Rule 3 of Dicey & Morris
,6
their Lordships suggested that it was well arguable that the claims before the English courts involved the extraterritorial assertion of sovereign authority, namely, claims to preserve the security of the state and its ruler.7
Their Lordships restored the Lieutenant Bailiff’s order but suspended its execution pending the English Court of Appeal’s
1. Emperor of Austria
v. Day and Kossuth
(1863) 3 De G F & J 217; 45 ER 861.
2. [2005] EWHC 2034 (QB).
3. [2006] UKPC 7.
4. See A Dickinson, “Revolutionary Claims” (2006) 122 LQR 569.
5. [2006] UKPC 7, [23]–[28]. Davis J in Mbasogo
had heard the argument that an English court ought not grant injunctive relief in aid of a foreign sovereign’s prerogatives. He thought it had no application to a claim alleging infringement of personal and property rights: [2005] EWHC 2034 (QB), [98]–[103].
6. L Collins et al
(eds), Dicey & Morris on the Conflict of Laws
, 13th edn (London, 2000) vol 1, ch 5, §5R–018. Rule 3 appears unchanged in L Collins et al
(eds), Dicey, Morris & Collins on the Conflict of Laws
, 14th edn (London, 2006) (hereafter Dicey, Morris & Collins
), vo1 1, ch 5, §5R–019.
7. [2006] UKPC 7, [25].
CASE AND COMMENT
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