Chapter VIII. Decisions of national tribunals

Extract from:

UNITED NATIONS JURIDICAL YEARBOOK

2008

Part Three. Judicial decisions on questions relating the United Nations and related intergovernmental organizations

. Decisions of national tribunals

Copyright (c) United Nations

UNITED NATIONS JURIDICAL YEARBOOK 2008

Chapter VIII Decisions of national tribunals

United Kingdom

1 England and Wales High Court (Commercial Court), London

(x) Entico Corporation Limited, Claimant, against the Secretary of State

for Foreign and Commonwealth Affairs, Intervener, and the United Nations Educational, Scientific and Cultural Organization (UNESCO), Defendant, Decision of 28 March 2008 477

2 Court of Appeal (Civil Division), London

(x) A, K, M, Q & G, Applicants/Respondents, against the H.M. Treasury, Respondent/Appellant, Decision of 30 October 2008 490

Part Four. Bibliography

A International organizations in general

1 General 515 2 Particular questions 515 B United Nations

1 General 516

2 Principal organs and bodies

General Assembly 517 International Court of Justice 518 Secretariat 519 Security Council 520 C Intergovernmental organizations related to the United Nations

1 United Nations Food and Agriculture Organization 525 2 International Atomic Energy Agency 526 3 International Centre for Settlement of Investment Disputes 526 4 International Civil Aviation Organization 526 5 International Labour Organization 526 6 International Monetary Fund 528 7 United Nations Educational, Scientific and Cultural Organization 528 8 World Bank Group 530 9 World Health Organization 530 10 World Trade Organization 531 D Other legal issues

1 Aviation law 534

2 Collective security 534

3 Commercial arbitration 535

4 Definition of aggression 535

5 Privileges and immunities and diplomatic relations 535

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Page

Chapter VIII

United Kingdom

1. England and Wales High Court (Commercial Court), London

   Entico Corporation Limited, Claimant, against the Secretary of State for Foreign and Commonwealth Affairs, Intervener, and the United Nations Educational, Scientific and Cultural Organization (UNESCO), Defendant

   Decision of 28 March 2008

   Immunity of an international organization—Convention on the Privileges and Immunities of the Specialized Agencies—Compatibility of the Specialized Agencies of the United Nations (Immunities and Privileges) Order with the right of access to fair and public judicial process under article 6 (1) of the European Convention on Human Rights (ECHR)—Article 6 (1) ECHR does not extend rights beyond existing jurisdiction—Grant of immunity under United Kingdom’s legislation pursues a legitimate aim and is proportionate—Availability of an alternative forum

   Mr Justice Tomlinson:

   (a) Introduction

   1 The Claimant to which I shall refer as “Entico” is an English company carrying on business as a publisher The Defendant, to which I will refer by its well known acronym UNESCO, is an international organisation which is one of the specialised agencies of the United Nations, hereinafter the UN It was created in November 1945 The United Kingdom, as one of the founding members of the United Nations, has been a member of UNESCO since its establishment, with the exception of a period between 31 December 1985, when it withdrew from membership, and 1 July 1997, when it rejoined As of October 2007 UNESCO had 193 Member States and six Associate Members Under international law, international organisations are granted immunities and privileges before the courts of their member States to enable them effectively to pursue their functions and to operate free from control by any individual Member State (see M Shaw, International Law (5th Edition, 2003), p 1207 and Mendaro v World Bank, 99 ILR 92 at 97–99 (US Court of Appeals, DC Circuit, 1983)

   2 This case concerns a challenge to UNESCO’s immunity from legal process, bestowed upon it by United Kingdom legislation pursuant to the UK’s obligation undertaken by accession to the Convention on the Privileges and Immunities of the Special-

   ised Agencies,* 1947, “the 1947 Convention”, which has 115 parties, including the UK, which became a party on 16 August 1949 Article III, section 4 of the Convention provides that—

   “The specialised agencies, their property and assets, wherever located and by whomso-ever held, shall enjoy immunity from every form of legal process except in so far as in any particular case they have expressly waived their immunity It is, however, understood that no waiver of immunity shall extend to any measure of execution ”

   In addition, article III, section 5, provides that—

   “The premises of the specialised agencies shall be inviolable The property and assets of the specialised agencies, wherever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial or legislative action

   These provisions apply to UNESCO under Annex IV of the 1947 Convention, to which the United Kingdom has notified its acceptance as a member of UNESCO, in accordance with article XI, Section 43 of the 1947 Convention

   3 Entico alleges that in October 2005 it concluded with UNESCO a contract pursuant to which Entico was to produce for UNESCO a calendar for 2006 Entico further alleges that in due course UNESCO failed and refused to perform the contract in consequence of which Entico has suffered loss and damage in the shape of costs and wasted expenditure Entico quantifies its loss as £86,484 In this action Entico claims that amount from UNESCO

   4 The headquarters of UNESCO are in Paris The relevant French authorities declined to effect service of these proceedings upon UNESCO, observing that UNESCO enjoys diplomatic immunity in that country Colman J permitted service to be effected by an alternative method, i.e., first class post, which was done but UNESCO has not acknowledged service Entico by this application seeks judgment in default of acknowledgement of service Since however as stated above UNESCO enjoys in this jurisdiction as elsewhere immunity from suit and legal process, Entico must first persuade the court to set aside that immunity To that end it is asserted that UNESCO’s immunity violates Entico’s rights under article 6 (1) of the European Convention on Human Rights, hereinafter the ECHR, which may broadly be summarised as access to fair and public judicial processes That challenge to the relevant UK legislation having been intimated, the Secretary of State for Foreign and Commonwealth Affairs intervenes pursuant to CPR 19 4A and submits that there is no incompatibility The Secretary of State takes no position regarding the underlying dispute between Entico and UNESCO UNESCO has taken no part in the proceedings although it has on three occasions written to the court to explain its position It denies that a contract was ever concluded between Entico and UNESCO

   (b) The underlying dispute

   5 Entico’s case as to the manner in which a contract was concluded is succinctly set out in its Particulars of Claim After describing the parties and explaining that at all material times Entico’s Managing Director, Mr James Ramsey, acted on its behalf and

   * United Nations, Treaty Series, vol 33, p 261

   chapter viII 479

   that Ms Michiko Tanaka, Chief of UNESCO Publishing, acted on UNESCO’s behalf, the Statement of Case continues:

   “3 By a contract, whose initial/draft terms were set out by Entico in writing (as set out in paragraph 4 below) and which terms were accepted by the subsequent conduct of UNESCO (as set out in paragraphs 6–7 below), made in or around late September-early October 2005 (‘the Contract’), Entico and UNESCO agreed that Entico would provide a calendar for the year 2006 for UNESCO and in this context, and in particular to assist Entico in raising funds sufficient to pay the estimated £150,000-£180,000 cost to Entico of the production and distribution of the calendar, UNESCO gave permission to Entico to use the ‘UNESCO’ name and logo in the said calendar These were the core terms of the relationship between the parties The contract was made as follows:

   “3 1 By an email dated 20 September 2005 Mr Ramsey wrote to Ms Tanaka stating, ‘Thank you for making it possible for us to put together a calendar for UNESCO Attached is the contract agreed between Entico and UN/ISDR [UN International Strategy for Disaster reduction] It could form the basis of a contract between our organisations as well I am keen to begin finding sponsors as soon as possible and as soon as we agree the contract I will send you a PDF of the proposal we send to sponsors for our approval ’

   “3 2 Ms Tanaka replied later the same day, stating ‘The terms of the agreement seem to us correct UNESCO will make small modifications to the terms in order to fit out [sic] own legal standards (please note that it is basically a matter of wording and not contents) Our legal service will prepare a draft which will be forwarded to you within this week ’

   Copies of the emails and the Entico/ISDR Contract (‘the Draft Contract’) are attached as annexure 1 hereto *

   “4 The following were, among others, express terms of the Contract, as set out in the Draft Contract (substituting ‘UNESCO’ in the place of ‘ISDR/ISDR Secretariat’, ’2006’ in the place of ’2005’ and ‘£150,000-£180,000’ in the place of ‘£200,000’):

   “The 2005 Calendar

   “1 In accordance with the terms and conditions of this Licensing Agreement, the Parties shall produce the 2005 Calendar The 2005 Calendar comprised [sic] of the following elements (the ’2005 Calendar’), are information products aimed at raising public awareness

   License

   “2 The ISDR Secretariat permits ENRICO [sic] the limited right to use its name and logo solely in connection with the production and distribution of the 2005 Calendar

   “3 Pursuant to the license granted by the ISDR Secretariat as set forth in paragraph 2 above, ENTICO is permitted to use the ISDR Secretariat name and logo to raise funds sufficient to pay the estimated GBP£200,000 cost to ENTICO...