I Congreso del Partido
Under the restrictive doctrine of state immunity, the court must look at the nature of the act in question, and a state that acts in a commercial transaction is not immune even if its motive is political.
Facts
Cuban state enterprises sold sugar to a Chilean company. After the military coup in Chile in 1973, the Cuban government, for political reasons, ordered the ships carrying the sugar to be diverted, and the cargo was not delivered. One ship, the Playa Larga, was diverted at sea, and another, the I Congreso del Partido, was still being built. The Chilean buyers sued the Republic of Cuba in England, and Cuba claimed state immunity. The claims related to events before the State Immunity Act 1978 came into force, so the common law applied.
Legal principle
The House of Lords held that Cuba was not entitled to immunity. Lord Wilberforce said that, under the restrictive doctrine, the court must consider the whole context of the claim to decide whether the act in question is of a commercial or private law character, acta jure gestionis, or whether it is an exercise of sovereign authority, acta jure imperii. Where a state has entered into a commercial transaction, it does not become entitled to immunity merely because it later acts for political reasons to break the contract; the question is whether the act complained of is within the area of commercial activity, or whether the state has moved into the sphere of sovereign action. Cuba's conduct in relation to the cargoes was within the commercial sphere.
Related cases on jurisdiction and immunities
- Al-Adsani v United Kingdom (2002) 34 EHRR 11
- Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (2002) ICJ Reports 3
- Attorney General of Israel v Eichmann (1962) 36 ILR 277
- Belhaj v Straw [2017] UKSC 3, [2017] AC 964
- Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs [2017] UKSC 62, [2019] AC 777
- Jones v Ministry of Interior of the Kingdom of Saudi Arabia [2006] UKHL 26, [2007] 1 AC 270
- Jurisdictional Immunities of the State (Germany v Italy: Greece intervening) (2012) ICJ Reports 99
- R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 2) [2000] 1 AC 119
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