Immunity Laws in India

FG Hemisphere later learned that the Congolese government would later enter into a separate joint venture with Chinese companies in which the Congolese government would receive $221 million in entrance fees for mining. Accordingly, FG Hemisphere requested the levying of those fees in order to enforce the earlier award. The Congolese government invoked sovereign immunity in the judicial proceedings. This was eventually brought before the Hong Kong Final Court of Appeal when the Congolese government struggled to overturn an earlier decision of the Court of Appeal that had ruled: Commercial Activities and Sovereign Immunity: In the Ganesh Narin case, the Supreme Court briefly discussed the issue of the lack of right to sovereign immunity in relation to commercial transactions. It agreed with the growing international principle of restrictive immunity and relied on Lord Denning`s observation in the case of Rahimtoola v. S.E.S. The Nizam of Hyderaband and Ors. (1957) 2 ALLE E.R. She also referred to the Court`s judgment in Trendtex Trading Corp Ltd.c. Central Bank of Nigeria (1977) 1 ALL E.R. 881, according to which, when a government agency enters the market and carries out a commercial transaction, it must be subject to all market rules.

Immunity from action means that neither a sovereign head of State, personally, neither in absentia nor in representative form (or, to a lesser extent, the State) may be a defendant or subject to judicial proceedings, nor in most equivalent proceedings such as arbitral awards and courts/damages. Immunity from execution means that even if a person succeeds in any way against his sovereign or state, he and the judgment may be without means of execution. The separation of powers or natural justice combined with a political status other than a totalitarian state dictate that there are broad exceptions to immunity, such as laws that explicitly bind the state (an excellent example is constitutional law) and judicial review. In Byrne v. Ireland, the Irish Supreme Court stated that sovereign immunity had not survived the creation of the Irish Free State in 1922 and that the State could therefore be prosecuted and held liable on behalf of the acts and omissions of its servants and agents. [21] However, such consent may not be required if the matter is governed by a special statute (e.B. by the Air Transport Act 1972, the Consumer Protection Act 1986) or if the legal proceedings are not in the nature of an action, . B such as a labour dispute under the Labour Disputes Act 1947. [6] Recently, the Delhi Supreme Court ruled that a foreign state cannot claim sovereign immunity under Article 86 of the Code of Civil Procedure against the enforcement of an arbitral award resulting from a commercial settlement. In Hans v.

Louisiana (1890), the U.S. Supreme Court ruled that the Eleventh Amendment (1795) states that states enjoy sovereign immunity and are therefore generally immune from being sued in federal court without their consent. In subsequent cases, the Supreme Court significantly strengthened the sovereign immunity of the State. In Blatchford v. Native Village of Noatak (1991), the court stated that the Indian Ministry of Foreign Affairs had been arrested on 4 August. In June 2021, a French company, Ultraconfidentiel Design Private Limited, granted permission to sue the Spanish Embassy in India for the recovery of Rs. 7.08 lakh, as well as interest on services provided by the company under Article 86 of the Code of Civil Procedure. Because of the immunity granted to the embassy, the consent of the government is required before the injured party goes to court, so any kind of frivolous prosecution against them can be avoided.

The immunity of one State essentially protects a State and its property from the jurisdiction of the courts of another State. It includes administrative, civil and criminal proceedings (immunity from jurisdiction) as well as enforcement measures (immunity from execution). It reflects the sovereign equality of States as a pillar of the current international legal order. Therefore, State immunity requires legal responses at the national and international levels. The doctrine is very closely linked to diplomatic immunity and the immunity of heads of State, as well as to the immunity of international organizations, but different from it. The 2004 United Nations Convention on The Immunity of States and Their Property is the first modern multilateral instrument to formulate a comprehensive approach to the issue of State immunity from prosecution before foreign courts. The Convention represents an intersection between international law and national procedural law and institutionalizes the transaction from the absolute rule to the restrictive rule of judicial immunity. On 12 January 2007, India signed the agreement. However, it has not been ratified, accepted or joined by India. The Convention itself is awaiting entry into force. Sovereign immunity from law enforcement would undoubtedly be a matter of interest to all commercial parties entering into contracts with state or government agencies. After all, a sentence is only worth something if you can enforce it.

The issue recently received a lot of attention in India when the Delhi Supreme Court («DHC») ruled on the issue of immunity from execution in the case of commercial transactions (KLA Const Tech v. Afghanistan Embassy). This decision is remarkable because India does not have a consolidated sovereign immunity law, and this decision is one of the first attempts to investigate immunity from execution. The signing of a convention and the adoption of a special statute for the application of the convention constitute an explicit waiver of immunity. In Ehiopian Airlines v. Ganesh Narain Saboo,[10] the Supreme Court of India reiterated the consensus in India that the doctrine of sovereign immunity in India is not absolute and that foreign states are not immune from prosecution in cases concerning their commercial and commercial activities and contractual obligations in India. As mentioned earlier, although the decision was one of the first Indian decisions to address State immunity from the perspective of international law, it left open several issues, such as the determination of seizable property and the relevance of diplomatic immunity in the current context. It remains to be seen what approach the DHC will take to address some of these issues at future hearings. Although the central government in this particular case gave its consent to the defendants` lawsuit for the performance of their contract, the court nevertheless discussed the issues at stake. .