Lloyd's Maritime and Commercial Law Quarterly
SOVEREIGN IMMUNITY AND THE COMMON LAW
Charles Lewis
M.A., Barrister.
Few legal topics have attracted such a welter of activity in recent years as the doctrine of sovereign immunity, the doctrine, that is, that a foreign State cannot, unlike the British Crown, be sued in our courts, with the corollary that an action cannot be maintained against its property, whether a ship it owns, money or gold in its account or in which it has a tolerably clear interest, or indeed any chattel. The topic is always a popular one as it falls within three different fields of interest: to deny a litigant the right to redress for a matter that would otherwise fall within the purview of our courts is hardly the best justice, however expedient it may be for foreign relations, and is a serious derogation from the comprehensiveness of the rule of law (an aspect of the matter that is sometimes overlooked); secondly, the constitutional lawyer finds much to interest his intellectual curiosity in formulating and justifying the rules on the subject; and thirdly, the commercial lawyer, a more practical beast, knows full well that if a foreign Government can halt an action in limine his clients are likely to find themselves denied any redress (except what the persuasions of the Foreign Office can accomplish) and the sums at stake are usually very large. He may even be obliged to advise his clients to contract elsewhere (i.e. than the City of London) in jurisdictions where any future litigation they may have to bring will not suffer an abrupt demise. Of course, if enough business is about to go elsewhere that provides the strongest motivation, namely, financial necessity, for creating by legislation a regime where the businessmen are offered a chance of proper redress in the courts. So we need not be surprised when we consider later in this article the arising of the State Immunity Act 1978.
But before we get to that somewhat belated effort to put our house in order, let us look at the doctrine of sovereign immunity under common law in earlier days. It arose originally out of the early cases on the immunity of diplomatic agents, such as Barbuit’s case (1737) in which Lord Talbot said:
“… the privilege of a public minister is to have his person sacred and free from arrests, not on his own account, but on account of those he represents…. The foundation of this privilege is for the sake of the prince by whom an ambassador is sent”.
Hence it was naturally considered that the person of the foreign potentate was equally immune. There was opportunity in the late 19th century to confine this immunity to what was logically demanded, namely to acts of the sovereign in his public capacity and to deny him immunity for acts in his private capacity. Thus in De Haber v. Queen of Portugal (1851) 17 Q.B. 171, the Lord Chief Justice spoke of immunity for acts of a foreign potentate in his public capacity as representative of the nation of which he is head (“to cite a foreign potentate in a municipal court … is contrary to the law of nations”). And that great international lawyer, Sir Robert Phillimore, said in The Charkieh (1873) L.R. 4 A. & E. 59 (though this was effectively obiter as his decision was based on his finding that the Khedive of Egypt was not of sovereign status):
“No principle of international law, and no decided case, and no dictum of jurists of which I am aware, has gone so far as to authorise a sovereign prince to assume the character of a trader, when it is for his benefit; and when he incurs an obligation to a private subject to throw off, if I may so speak, his disguise, and appear as a sovereign, claiming for his own benefit, and to the injury of a private person, for the first time, all the attributes of his character”.
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