Foreign sovereign immunity in the caribbean: a case for legislative intervention

• Author: Mr Justice Winston Anderson
• Position: Judge of the Caribbean Court of Justice ('CCJ') and Chairman of the CCJ Academy for Law
• Pages: 57-100

FOREIGN SOVEREIGN IMMUNITY IN THE

CARIBBEAN: A CASE FOR LEGISLATIVE

INTERVENTION

THE HONORABLE MR JUSTICE WINSTON ANDERSON*

ABSTRACT

It may be taken to be a general principle of Caribbean jurisprudence that foreign

states and their agents enjoy certain immunities from the jurisdiction of domestic

courts and domestic law enforcement agencies. Clarif‌ication of the scope of this im-

munity is important because of the increasing presence of foreign governmental ac-

tivity in commercial and economic developmental transactions in the region.

Foreign sovereign immunity has not, however, been provided for in the constitution

or by the legislature of any independent Commonwealth Caribbean state, (with,

possibly, the qualif‌ied exception of Belize) and the courts have been left to navigate

as best they can through the thorny doctrinal problems to which the subject gives

rise. This article surveys the present law as best divined from the sprinkling of

potentially relevant constitutional and legislative provisions and common law

cases on the subject. This article then considers both the general requirements for

legislative intervention as well as recent challenges that strengthen the case for legis-

lative involvement. It echoes what is now a distinct judicial call for amplif‌ication

of the law by the legislatures in the Caribbean.

I. INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

II. CONSTITUTIONAL PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . 62

III. LEGISLATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64

IV. COMMON LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66

A. Teemal v. Guyana Sugar Corp. (1982). . . . . . . . . . . . . . . 66

B. Rambachan v. Trinidad and Tobago Television Co. (1985) 67

C. Government of Venezuela v. Fakhre (1986) . . . . . . . . . . . . 68

D. Panacom International Inc. v. Sunset Investments Ltd.

(1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

E. Tullow DRC BV v. Capri Kat Ltd. (2010) . . . . . . . . . . . . 75

F. RBTT Trust Ltd. v. APUA Funding Ltd. (2010) . . . . . . . 75

G. Caribbean Examinations Council v. Industrial Disputes

Tribunal (2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

H. Vargas v. OECS (2017) . . . . . . . . . . . . . . . . . . . . . . . . . 80

* Judge of the Caribbean Court of Justice (“CCJ”) and Chairman of the CCJ Academy for Law.

I am grateful to Anessa Anderson, attorney-at-law, for her assistance in compiling this article.

V

C 2021, Winston Anderson.

57

V. LEGISLATING FOR WIDE APPLICATION . . . . . . . . . . . . . . . . . . . . 81

A. Foreign Decisions In Favor of Caribbean Immunity. . . . . . . 86

B. Foreign Decision Against Caribbean Immunity on

Uncontroversial Grounds . . . . . . . . . . . . . . . . . . . . . . . . 89

C. Foreign Decision Against Caribbean Immunity on Disputed

Grounds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90

VI. LEGISLATIVE RESPONSE TO RECENT DEVELOPMENTS . . . . . . . . . . 93

A. Impunity from Enforcement . . . . . . . . . . . . . . . . . . . . . . . 93

B. Foreign Immunity and Act of State . . . . . . . . . . . . . . . . . . 94

C. Jus cogens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

VII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100

I. INTRODUCTION

Foreign sovereigns and their agents are generally allowed to enter and

otherwise act within the territories of Caribbean states. A concomitant of

that license is the existence of an immunity from the jurisdiction of the

domestic courts and the domestic law enforcement agencies.

1

The justif‌i-

cation for this immunity has been widely accepted to be that stated by

Chief Justice Marshall in the U.S. Supreme Court decision in The Schooner

Exchange,

2

namely, “the perfect equality and absolute independence”

3

of

sovereigns. This premise was accepted by the English Court of Appeal in

The Parlement Belge

4

as inducing every state to decline “to exercise by

means of any of its Courts any of its territorial jurisdiction over the person

of any [foreign] sovereign” or over the property of that sovereign located

within its territory.

5

This rationale, loosely translated to mean that an

equal has no authority over an equal (par in parem non habet imperium), has

been repeatedly invoked as the basis for foreign sovereign immunity.

6

1. IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 470 (7th ed. 2008).

2. Schooner Exchange v. McFaddon, 11 U.S. 116 (1812).

3. Id. at 138.

4. The Parlement Belge [1880] 5 PD 197.

5. The Parlement Belge [1880] 5 PD 197 at 215.

6. For a discussion of the nature and origin of sovereign immunity, see Tristan Dunford, The

Original Understanding of State Sovereign Immunity, 32 J. JURIS. 167 (2017). Dunford considers that

the belief that sovereign immunity is a common law doctrine that developed under the English

feudal system, as well as the belief that sovereign immunity is based on the notion that one who

creates the law is superior to the law, are both ill conceived. Instead, Dunford offers the explanation

that the concept of the “sovereign” is rooted in the law of nature, wherein people form society for

safety in life, liberty and property. Dunford explains “[w]ith the formation of the state comes the

need to set up a public authority who prescribes duties of each member of the society and enforces

those duties upon the populace. This public authority is the sovereign. For this authority to be

effective, it must be given certain duties, rights, and privileges to carry out its work. One of those

GEORGETOWN JOURNAL OF INTERNATIONAL LAW

58 [Vol. 53

There was formerly a rule of absolute immunity,

7

See, e.g., The Parlement Belge [1879] 4 PD 129; The Porto Alexandre [1920] N. No. 1315 at

30, http://www.uniset.ca/other/cs2/1920P30.html; Berizzi Bros. v. The Pesaro, 271 U.S. 562

(1926).

seemingly accepted

by the Privy Council,

8

but the twentieth century witnessed a signif‌icant

expansion in state industrial and trading activities such that to accord

them all absolute immunity would give them an unfair commercial

advantage. There gradually developed a distinction between acts of gov-

ernment (jure imperii), which continued to attract immunity; and acts of

a commercial nature (jure gestionis), which did not. The seismic shift in

Caribbean common law from absolute to restrictive immunity was f‌irst

announced in the Privy Council decision in The Philippine Admiral

9

and

was later adopted and placed on clearer doctrinal footing in English

common law by the English Court of Appeal in Trendtex Trading Corp. v.

Central Bank of Nigeria.

10

Within a decade of these two cases the restric-

tive doctrine of “sovereign” or “state” immunity was codif‌ied in legisla-

tion in the United States,

11

United Kingdom,

12

Singapore,

13

Pakistan,

14

South Africa,

15

Australia,

16

and Canada.

17

There has been a dialectical relationship between these develop-

ments in domestic law and corresponding changes at international law.

The movement from absolute to restrictive immunity was premised on

the increasing number of states adopting this evolution in their domes-

tic courts and legislation thus evidencing a development in state prac-

tice and opinio juris resulting in the change of customary international

law. At the treaty level this shift was concretized in two main multilateral

conventions: the 1926 Brussels Convention for the Unif‌ication of

privileges is sovereign immunity, or immunity from suit for actions committed by the sovereign.

Sovereign immunity is granted to sovereigns to allow them to work for the best good of the state.”

Id. at 170.

7.

8. See, e.g., Sultan of Johore v. Abubakar [1952] 1 All ER 1261 (citing The Parlement Belge with

evident approval, though holding, on the facts, that there had been a waiver of immunity by the

foreign sovereign).

9. The Philippine Admiral [1976] 2 WLR 214 (PC) (U.K.).

10. Trendtex Trading Corp. v. Cent. Bank of Nigeria [1977] QB 529 (U.K.).

11. Foreign Sovereign Immunities Act of 1976, Pub. L. No. 94-583, 90 Stat. 2891 (1976).

12. State Immunity Act 1978, c. 33 (U.K.).

13. State Immunity Act 1979, c. 313 (Sing.).

14. The State Immunity Ordinance 1981, No. 6 of 1981, March 11, 1981 (Pak.).

15. Foreign States Immunities Act 87 of 1981 (S. Afr.), amended by Foreign States Immunities

Amendment Act 48 of 1985 (S. Afr.).

16. Foreign States Immunities Act 1985 (Cth) (Austl.).

17. State Immunity Act, R.S.C. 1985, c. S-18 (Can.).

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