Recent Developments in the Law of Sovereign Immunity in the United Kingdom" by Rosalyn

Higgins:

The article examines several recent court cases that have significantly changed the
interpretation and application of sovereign immunity doctrine in the UK.

The traditional English law doctrine was one of absolute immunity for foreign sovereign states,
even for commercial activities. This was affirmed in cases like The Parlement Belge and Thai-
Europe v. Government of Pakistan.

In 1976, the Privy Council in The Philippine Admiral departed from precedent and held that
immunity does not apply to vessels owned by foreign states but used solely for commercial
purposes. This introduced the restrictive immunity doctrine in the UK for the first time.

In 1977, the Court of Appeal in Trendtex v. Central Bank of Nigeria refused to grant immunity to
Nigeria's Central Bank for repudiating letters of credit, establishing the restrictive doctrine for in
personam actions. The court relied on the commercial nature of the transaction rather than the
status of the Bank.

The article analyzes the Court of Appeal's reasoning on whether it was free to change the law
on sovereign immunity and the relevance of determining the status of the defendant. It notes
the court's differing views on incorporating new international law.

The article also examines the distinction between acts jure imperii and jure gestionis raised in
Congreso del Partido, where Cuba claimed immunity for not delivering cargo, arguing it was a
sovereign act. The court disagreed, finding the nature of the transaction, not the breach, should
be assessed.

The article provides an insightful review of how English law on sovereign immunity has rapidly
transformed to align with international trends.
The Philippine Admiral Case

The Philippine Admiral case was decided by the Privy Council in 1976.

It concerned a ship owned by the Republic of the Philippines but used solely for private
commercial activities.

The ship was arrested in Hong Kong for unpaid bills from repairs and supplies. The Philippines
claimed sovereign immunity against the arrest.

The Privy Council held that immunity does not apply to state-owned ships engaged solely in
commercial trading activities.

It distinguished the earlier cases of The Parlement Belge and The Porto Alexandre which had
granted immunity for state-owned ships, finding those ships had not been used wholly for
trading purposes.

The Privy Council stated the trend of world opinion was against granting immunity for state-
owned commercial vessels.

However, it reiterated that the restrictive immunity doctrine did not yet apply for in personam
actions against sovereign states in English law.

The Philippine Admiral case represented the first acceptance of the restrictive doctrine in
English law, but only for in rem admiralty proceedings.

It paved the way for the fuller adoption of restrictive immunity in cases like Trendtex soon after.

The article analyzes how the Privy Council reasoned its way around earlier binding precedents
to reach this landmark decision departing from absolute immunity.