FOREIGN ACT OF STATE: COMITY OR CERTAINTY?
Maduro Board v Guaidó Board
It now appears customary to begin one’s discussion of the foreign act of state doctrine, as Lord Lloyd-Jones did in Maduro Board of the Central Bank of Venezuela v Guaidó Board of the Central Bank of Venezuela
by lamenting the mess in which the law is. The sentiment is relatable: after Belhaj v Straw
the doctrine—which requires courts to “recognise” and “not question the effect” of certain foreign legislative and executive acts3
—was split between two conceptions of its scope and limitations, flowing from disagreement on its theoretical underpinnings. In Maduro Board
, Lord Lloyd-Jones, with the Supreme Court’s unanimous support, sought to remedy this by preferring one of those theoretical foundations. Regrettably, he chose the weaker of the two, with problematic implications for the doctrine’s future.
In January 2019, Nicolas Maduro assumed the Presidency of Venezuela. He had appointed a board for the Central Bank of Venezuela (the “Maduro Board”), to manage the Republic’s assets overseas, including gold in the UK. Juan Guaidó, head of Venezuela’s National Assembly, claimed that Maduro’s election was fraudulent, and that Venezuela’s Constitution thus made him the President instead. The Assembly then passed a “Transition Statute” authorising Guaidó to appoint administrative boards for state institutions, pursuant to which Guaidó issued an executive decree appointing a rival board for the Bank (the “Guaidó Board”). The Supreme Tribunal of Justice, Venezuela’s highest court, issued judgments declaring Guaidó’s Presidency, the Transition Statute and the Guaidó Board’s appointment unconstitutional,4
which Guaidó and the Assembly disregarded on grounds that the Tribunal’s members were corrupt supporters of Maduro’s regime.5
When disputes arose in English courts on who could control the gold, the Maduro Board argued that it could. The Guaidó Board countered that it had control instead, on grounds that Guaidó was Venezuela’s legitimate President, that the foreign act of state doctrine prevented English courts from “consider[ing] the validity and/or constitutionality under Venezuelan law” of the Transition Statute and the Guaidó Board’s appointment,6
and that the Supreme Tribunal’s judgments did not change this.
Lord Lloyd-Jones noted that Her Majesty’s Government had recognised Guaidó as Venezuela’s President; and so, pursuant to the “one voice” principle, Guaidó was Venezuela’s head of state for the purposes of English proceedings.7
The question, then, was whether the foreign act of state doctrine prevented English courts from assessing the constitutionality of the Transition Statute and the Guaidó Board’s appointment under