SOVEREIGN IMMUNITY

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• Collection: General CIA Records
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• Document Creation Date: December 22, 2016
• Document Release Date: August 18, 2011
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• Content Type: REPORT

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AVAILAULt It-) 1H1,, r3ANK; STARE L)ECISIS DOES NOT APPLY IN INTERNATIONAL
it only
Iility to INTRODUCTION
n more At its apogee in the nineteenth century, sovereign immunity was a generally
Ties. tag peognized public international law doctrine. In its strictest form, it posed an
"_
hsolute bar (absent consent) to suits against a state or its property in the courts
?ourke* another state. In the twentieth century nation-states began to conduct trading
s A,f.gttat pursuit. As a result, pressures arose to abolish the immunities of state-
X1
rs.-
Those who wished to preserve the absolute immunity of states came into
et with those who wished to restrict the availability of immunity to those
ions where the state was performing acta jure imperil (public acts or acts
state; literally, acts of power) as contrasted with acta jure gestionis (private
absolute and restrictive schools grew intense during the decade following the
lute theory.
The- been a tint --vt }idation-of opinion in favor of the`
rule. The Basle Convention4 created a restrictive standard for much of-
PM.. in the united Mates, 1976 saw both the enactment of restrictive
'
1. Basic English ~ language ^sources on the history and development of sovereign
i'fE-OWNha) COMMERL IAL ENTITIES (19) 1 ); and E. A1.1.1-:N, THE POSITION OF FOREIGN
of the important older articles on the subject area are collected in 2 D. O'CONNELL,
._.........,.. I .a., QA1 .. 1 (2d _.1 1970)
3. See Lauterpacht, The Problem of Jurisdictional Immunities of Foreign .States, 28
. v.f INT'. i 2120 (1nC,i
4. The European Convention on State Immunity (Basle, 1972) II INT'I. LEGA1.
in 1976, 16 INT'L LEGAL. MATERIALS 766 (1977). See Sinclair, The European
..._.. on State r..., ., .... 11 1...... o_ _ _ ? .. -- . 197
 132 TEXAS INTERNATIONAL LAW JOURNAL [Vol. 13:131
t %munity as positive law by Conlljresss and a parallel development in the act Of
state field with the (plurality opinion of the Supreme Court in Alfred Dunhill 44
.London, Inc. V. Republic of Cuba.6 fly England among major Wes
nations still strictly adhered to absolute immunify.
Tjie decision of the Privy Council in the Phillipine Admiral' changed that
The defense of sovereign immunity was rejected in that in rem actiof, because
the ship, although owned by the Phillipine government, was engaged in com-
mercial trading. The Privy Council tried to narrow the scope of their decision as
much as possible. To this end they affirmed in dicta the rectitude of the rule of
absolute immunity in in personam actions. The present case lies in personam;
and neither the Court of Appeal nor the House of Lords, which has accepted
appeal,t is hound by the decision of the Privy Council.' The decision in the
Phillipite Admiral, however, is plainly inconsistent with the notion of absolute
immunity, and with the position that the absolute doctrine should not be
questioned. The case was a crack in the English judiciary's support for the
doctrine; but no one expected the foundation to crumble so soon.
Several factors contribute to the importance of ti2"sent cNe. Ntipheld-
tll louse of Lords,: the decision will move England foursquare into the restrict!"
We immunity campf This has two ramifications. First, it will probably influence
decisions on the same point in other Commonwealth jurisdictions. Second,
while England was the last major industrial nation to cling unswervingly to
absolute immunity, the doctrine still has appeal for Third World nations. If
England opts for restrictive immunity Western nations will be united on this
question. To the extent that developed nations' laws on the point are consistent
with one another, their negotiating position vis-a-vis less-developed nations will
be stronger. The decision is also important because this case is only one of
several arising from the same set of facts10 and the outcome of the litigation in
any of the jurisdictions could indirectly affect the outcome in others." Finally,
5. Foreign Sovereign Immunities Act of 1976, Pub. L. 94-583, Oct. 21, 1976; 90 Stat.
2892; 28 U.S.C. ?? 1330, 1332(a), 1391(f), 1602-1611 (Supp. 1977). See Sovereign
Immunity-the Limits of Judicial Control-The Foreign Sovereign Immunities Act of
1976, 18 HARV. INTL. L. J. 429 (1977).
6. 425 U.S. 682 (1976).
7. "Phillipine Admiral" v. Wolhelm Shipping (Hong Kong) Ltd., [197612 W.L.R.
214 (P.C.). See Chinkin, Trading Activities by Foreign Sovereign States and the Law of
Sovereign Immunity, 39 MoD. L. REV. 597 (1976); and Shaw, Sovereign Immunity and 11
F
li
h C'
_ng
s
aIms, 126 NEw L. J. 632 (1976).
8. Marston, Sovereign Immunity for Commercial Transactions: the Trendtex Case,
I I J. WOW l) TRADE L. 280, 283 (1977).
9. Marshall, The Binding Effect of Decisions of the Judicial Committee of the Privy
Council, 17 INT't. & COMP. L. Q. 743 (1968).
M. Others are National American Corporation v. Federal Republic of Nigeria, 420 F.
Stipp. 954 (S.D.N.Y. 1976), 425 F. Supp. 1365 (S.D.N.Y. 1977); and Judgment of Dec. 2,
1975, D. Ct. of Frankfurt, G.F.R:, [19761 NEUE JURISTISCHE WOCHENSCHRIFF 1044-46,
sub nom. Nonresident Petitioner v. Central Bank of Nigeria, 16 INT'L LEGAL MATERIALS
501 (1977).
11. This has already occurred. The Judgment of Dec. 2, 1975, supra note 10, plainly
influenced the Court of Appeal in the instant case. [197712 W.L.R. 356, 369, 382 (C.A.).
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14
63
15
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13:131 1977]
YIhill of for international law, especially in common law jurisdictions.
'd that.
,ccause
n com-
lsion as
rule of
sonam;
ccepted
.1 in the
absolute
not be
for the
held by
restric-
f l uence
second,
ugly to
ions. If
on this
nsistent
.ms will
one of
,.ation in
Finally,
W.L.
e Law
iia,420
of Dec.
it
FACTUAL BACKGROUND12
In early 1975, Nigerian federal and state agencies contracted with eighty
suppliers for delivery of a total of twenty million tons of cement at Nigerian
ports over a period of twelve months. The contracts included liberal provisions
for demurrage and incorporated an irrevocable letter of credit issued by the
legislatively created" Central Bank of Nigeria (the Bank). One of the contracts
was between the Nigerian Ministry of Defense and a supplier who contracted in
turn with Trendtex for delivery of the cement. By agreement, a new irrevocable
letter of credit was issued by the Bank to Trendtex through a correspondent
bank, which did not confirm.
It was not possible for Nigerian ports to handle the quantities of cement which
soon began to arrive. By July, more than three hundred ships were waiting to
unload at the already filled berths of the Lagos/Apapa port complex. This and
other problems led to a coup. The new government took various steps, both
unilaterally and through negotiations with suppliers, to alleviate the congestion.
Disputes arose with Trendtex and payments on the letter of credit were stormed.
in iNovemoer, I rendtex issued a writ claiming money owed on the letter of
credit (rather than on the purchase contract) 14 and sought an injunction barring
removal from the jurisdiction of certain of the Bank's funds held by the
correspondent bank. After hearings, the magistrate ordered the temporary in-
junction continued until trial.
The Bank then applied to the Queen's Bench Division to set aside the writ of
summons and the injunction. The application rested on two grounds: first, that
the Bank was a part of the government of Nigeria, and as such had sovereign
,VVF~,o,r,, u?u,LL,,,,y u1 Ivlgena. i ne judge accepted both of these arguments.
h
d
t
Ie rejecte
e notion of restrictive immunity as precluded by authority. 15
ISSUES
The primary question was whether sovereign immunity was available to the
vie t t e ank was sufficiently identifiable with the Nigerian government.
The Court or Appeal approached this question from two points of view
.
first approach assumed that absolute immunity was the rule; immunity was
'fh B
12. Unless otherwise noted, the facts are drawn from the published Trendtex opin-
.? [19761 I W I R R6R /(1 IQ 1?
nd [19771
w r .. ... ,..
a
2
14. H. UUrrERIDGE & M. MEGRAH, THE LAW OF BANKERS' COMMERCIAL CREDITS,
it 205 (5th ed 19761
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 134 TEXAS INTERNATIONAL LAW JOURNAL [Vol. 13:131
The issue was simply whether the Bank was an alter ego, arm, emanation or
department of that government. The second approach was more complex and
involved three issues. The first was the extent to which the court was bound by
earlier English decisions on sovereign immunity-specifically, whether stare
decisis applies to international law questions. If authority was not binding, it
would become necessary to decide the second issue-whether restrictive or
absolute immunity was the rule of international law. If restrictive immunity
were the rule, the third issue would then be important-whether nature or
purpose or some other quality determines the character of an act (gestionis or
imperii) under that doctrine. Under either of these two approaches, the Bank's
pleadings required consideration of a second question: whether the immunity of
the funds attached might be distinct from that of the Bank, as a result of the
allegation that they were in reality foreign reserves of Nigeria.
Trendtex also raised issues of waiver and estoppel. These related to com-
munications by the Bank assuring Trendtex of the soundness of the letters of
credit. They were not strenuously pressed before this court because of contrary
authority." The House of Lords, however, is free to consider them decisive. An
assertion made before the Queen's Bench that the accounts of the Bank were a
fund held in trust for Trendtex'7 was apparently dropped in the Court of Appeal.
No mention of it appears in the opinions.
DECISIONS
The Justices of the Court of Appeal, Lord Denning, M.R., Stephenson and
Shaw, all decided for Trendtex, but each rested his decision on a slightly
different basis. All examined the matter under both of the approaches outlined
above, but they could not agree on which was the most satisfactory. The greatest
concord among the three was achieved under the first approach; they were
unanimous in reversing the lower court's determination that the Bank was an
arm or alter ego of the government of Nigeria.
A. The Alter Ego or Arm of the State Approach
The Court of Appeal considered the issue in essentially the same light as the
lower court, but the three Justices each formulated the test in a slightly different
manner. 'K The lower court listed the factors it thought relevant at great length.19
The Justices of the Court of Appeals were more selective but, like the lower
court, they did not always indicate which factors weighed in which direction.
Lord Denning, in particular, was virtually opaque. While his colleagues and the
court below at least emphasized some factor which they found finally persua-
16. [19771 2 W.L.R. at 371.
17. [1976] I W.L.R. at 877.
18. [1976] I W.L.R. at 873; [1977] 2 W.L.R. at 370, 374, 383.
19. 11976] 1 W . L. R. at 874-76.
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or
nd
oy
re
it
or
ity
or
or
k's
of
the
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and
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)wer
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d the
rsua-
NoTFS 135
sive,20 Lord Denning did not.21 This was partly the result of his careful
consideration of the case, which led him-to exclude several factors which his
brethren and the court below implicitly or explicitly accepted as relevant.
The most intriguing instance of exclusion was his refusal to give any positive
weight to the Nigerian Ambassador's certification that the Bank was an arm of
the state, on the ground that the Ambassador might apply an improper test.22
This, coupled with the disapproving reference to hypothesized immunity for a
press agency controlled by a state, casts doubt on the continuing vitality of
Krajina v. Tass News Agency.21 It is plain that under the restrictive doctrine
Krajina would not be good law, so these disparaging comments may reflect
only Lord Denning's judgment that a restrictive approach is best. But the refusal
to give positive weight to the certificate may also indicate that he would decide
Krajina differently even under an absolute approach.
In a similar vein, Lord Denning rejected the usefulness of both Nigerian and
English law on the internal immunities of legislatively created entities.24 The
judge below25 and Stephenson26 explicitly accepted both, though the latter
would use English law merely as a "guide. "27 Lord Denning's approach marks
the question clearly as one of international law, while the other may allow
domestic law prejudices to creep in. Since the influence of domestic immunities
law seems likely to lead to less uniformity (and a consequently confused state of
the law among nations) Lord Denning's view is preferable.
These differences in the end had little practical import. AILAhelustic";ef rm
:,, ttlC~ tlv.-dtlrtsidered the Bank a hybrid: part state
_
-
4*1, I
PHM
diced them to place their
pnvatal~ tseneath this unanimity, there was discomfort on the part of at
least two of the Justices: Stephenson and Lord Denning. Stephenson felt the
alter ego question was extremely close. He finally rested his judgment on this
ground, but only because he felt precluded by authority from resting it on
restrictive immunity.-2' Shaw expressed no preference between alter ego and
restrictive immunity beyond treating the alter ego question first.'-' Lord Denning
20. Q.B.-"discretion has to he exercised on behalf of . . . the state", [19761 1
W.L.R. at 876; Stephenson-lack of a declaration of government status in the enabling
statute, [1977] 2 W.L.R. at 373, 374, 375; Shaw-no overt indication (by name, title, or
21. [197] 2 W.L.K. at sit, "on the whole."
22. Id. at 370.
23. [1949] 2 All E.R. 274 (C.A.). Krajina held that Tass had sovereign immunit
in a
y
Ebel action for damages. The only evidence was a portion of Tass' enabling statute and a
certificate of the Soviet ambassador, both tending to show that Tass was an organ of the
ate. Russian law alone governed the determination whether lass was an organ of the
25. [1976] 1 W.L.R. at 879, 876.
26. [1977] 2 W.L.R. at 373-4, 375.
27. Id. at 375.
28. Id. at 381.
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 [Vol. 13:131
was so uncomfortable with this decision that he preferred to rest his judgment
exclusively on restrictive immunity grounds,30 even though he found the Bank
was not an alter ego of the Nigerian state. '
B. Restrictive Immunity
The restrictive immunity decision is the most significant part of the judgment
of the Court of Appeal. If it is the law, all the problems inherent in the alter ego
approach are avoided. Reaching the decision required three steps (outlined in the
Issues section, supra) and the path along the way was not an easy one for an
English court. Only two of the Justices made it the whole distance.
Lord Denning led the way. In Rahimtoola v. Nizam ofHyderabad3t and again
in Thai-Europe Tapioca Service, Ltd. v. Government of Pakistan,12 he had
dissented from the traditional English interpretation of sovereign immunity"
and articulated several exceptions to the "rule" of absolute immunity-includ-
ing a commercial exception.34 In Trendtex, Lord Denning abandoned the taCk
of finding a commercial exception and declared restrictive immunity to be the
rule. Shaw agreed. Stephenson, however, felt that dicta in Thai-Europe to the
effect that stare decisis applied in international law's bound him to the contrary
authority of The Parlement Belge31 and Compania Mercantil Argentina V.
United States Shipping Board.17 In order to reach the decision they did, Lord
Denning and Shaw had to counter these assertions of the Thai-Europe justices,
and negate the authority of the earlier decisions.
30. Id. at 371.
31. [19581 A.C. 379 (1957). The Nizam sued for money transferred by the Nizam's
agent without authorization to Rahimtoola, High Commissioner of Pakistan in England,
who received it on the instructions of the Foreign Minister of Pakistan. The action was
disallowed on the ground that a foreign sovereign was impleaded. Lord Denning concurr-
ed on the narrower ground that it was a political act, an intergovernmental transaction,
which was the basis of the action, and the conflict was not an appropriate one for judicial
resolution.
32. [19751 1 W.L.R. 1485 (C.A.). A German shipowner claimed for demurrage and
damages sustained while waiting to unload the cargo of fertilizer for which the defendant
had contracted. The claim was disallowed on broad sovereign immunity grounds. Lord
Denning concurred on the narrower ground that neither the plaintiff nor the transaction
out of which the complaint arose had any connection with England, so that England was
an inappropriate forum for the case.
33. [1958] A.C. at 411-24; [1975] 1 W.L.R. at 1488-92.
34. [1958] A.C. at 422; 119751 1 W.L.R. at 1490-91.
35. [1975) 1 W.L.R. at 1493, 1495.
36. 5 P.D. 197 (C.A. 1880). The Parlement Beige is the classic English sovereign
immunity case, in which an in rem action against a packet, owned by the King of Belgium
and engaged in transporting passengers and mail across the channel, was dismissed on the
ground that the comity of nations required that no court entertain an action in which a
foreign sovereign was impleaded.
37. 131 L.T.R. (n.s.) 388 (C. A. 1924). Plaintiff trading company chartered a merchant
ship owned by the Congressionally created Shipping Board. An in personam action for the
return of freight overpaid was rejected on sovereign immunity grounds. A commercial
exception to the absolute rule was proposed and explicitly rejected.
The log
38. Se,
39. Id.
40. Th
peal. M;
uncil, l
41. Alt'
nting le,
42. Se
wbyE.
43. [V
44. Id
itorial
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Stare I
A short di
Kingdom h,
dent.-'8 Alth(
that the Cou
normally it
House of I.
severely lim'
Parliament t
the expericr
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as a distinc '
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as a distils
According
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Lord Dr
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ment
Bank
went
rego
n the
Iran
{gain
had
iity33
lud-
tack
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Lord
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i' action
and was
40. The decisions of the Privy Council are persuasive but not binding on the Court of
V. ereign
0
,-,
"
Belgium Appeal. Marshall, The Binding Effect of Decisions of the Judicial Committee of the Privy
d on the Council, 17 INT't. & COMP. L.Q. 743 (1968).
%khich a 41. Although the Basle Convention, supra note 4, to which England is a party, was
Stare Decisis and the Theories of Incorporation and Transformation
A short digression is in order before we carry this inquiry further. The United
Kingdom has a relatively rigid system of authority and strict rules of prece-
dent.38 Although there has been some relaxation in recent years, it is still true
that the Court of Appeal is usually bound by its own prior decisions.39 The Court
normally sits in panels of three, whose decisions can be reversed only by the
House of Lords or Parliament.40 Judicial power to change the law is thus
severely limited. Relatively few cases are appealed to the House of Lords, and
Parliament tends to be most urgently pressed by domestic issues. One result, as
the experience with sovereign immunity suggests,41 is that the U.K. may find
itself enforcing an international "law" long after the rule has lost its authority
outside the jurisdiction.42
to declare that the doctrine of stare decisis does not t
s rTO questions of internatiotwh st all 'His conclusion results from an
inquiry into two competing theories as to the place of international law in the
municipal law of England. ' theory- ees international law '
ads dtfifct body of opinion and pragtiee'whivh has no municipal authority until
adopted by an English court or Partiwneritwr by custonf. Once transformed, an
international rule is subject to the same rules of precedent as any other municipal
law. D "incorporation" theory, on the other hand, regards international laic
as,%-distinct body of law, with a life separate from that of municipal law.'
According to this theory, an international rule is applied by municipal courts as
it exists at the time of decision, unless it conflicts with an Act of Parliament.
Lord Denning shows, in a brief history '41 that English decisions have not
reflected either theory clearly or consistently. He and Shaw find that incorpora-
tion must be the correct rule. In support, Lord Denning cites three instances
where English courts have assertedly recognized and applied changes in interna-
tional law.44 He also asserts (and Shaw relies exclusively on this argument) that
if transformation were the rule, decisions by the Court of Appeal on internation-
al law would only be susceptible to change by the House of Lords or Parliament.
This, he declares, would be absurd."'
The logic of the latter argument is open to grave doubt, for the same could be
38.
See generally R. CROSS, PRECEDENT IN ENGLISH LAW (2d
ed. 1968).
39.
Id. at 128-40, 105-8.
concluded in 1972 and came into effect in 1976, Parliament still has not enacted imple-
ierchant menting legislation.
n for the 42. See Erades, Is Stare Decisis an,Impediment to the Enforcement of International
mercial 'r Law by English Courts?, 4 NETH. Y.B. INT'L L. 105 (1973).
43. [1977] 2 W.L.R. at 364-65.
44. Id. at 365. They are the changes in the legitimacy of slavery, the extent of
territorial waters, and sovereign immunity (referring to the Privy Council's decision in the
phillipine Admiral).
45. M. at 365, 387-88.
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 138 TEXAS INTERNATIONAL LAW JOURNAL [Vol. 13:131
said with respect to domestic law in England. The problem of the extent to
which precedent binds courts is a systemic one. Stare decisis as applied in
England slows the process of change in aJI areas of the law. If international law
is to be distinguished from other law for some purposes, there must be some
rationale for the distinction which can become the basis of a judicial test.
Sovereign immunity may be readily and commonly identified as international
law, but there are many areas which are not so readily categorized: e.g. , human
rights, and questions which arise under the EEC Charter. In order to be
completely satisfying, the Trendtex decision should at least have articulated a
standard by which the distinction could be made. If the House of Lords fails to
clear up this point, there will certainly be further litigation on the question, what
is within international law, and thus not governed by stare decisis.
In spite of this difficulty, the thrust of the decision on the place of internation-
al law within the domestic order is commendable. To the extent that it is
influential in other (common law) systems, the decision will open judicially
applied international law to more systematic development. Freeing domestic
courts of the restraints of municipal systems for the purposes of international law
is a step towards creation of a more coherent international legal structure. It is a
small step, and in this case an ambiguous one-by giving up this measure of
sovereignty, English courts actually gain a good deal of freedom-but it is a
significant step nonetheless.
;Jeafreein aspecc-is-balanced by the qualification that an English court mu?
apply international law as it exists. The judges' freedom will be limited by the
rags3irentettt that they consider other decisions and opinions in order to disco"*
"*? ht the international rule is. IN cases where clear and recent domestic authority
exists, or where no authority exists, the result would not be very different from
that of the present system. The change would come in the middle ground of
cases, where the law is moving. If the present decision stands, there will be
more voices heard in the debate over a movement in international law.
Definition of acta jure gestionis
-the problem of prior authority had thus been eliminated, the rest w
rehtttiftiy easy. ilhoM to (in spite of Stephen-
son's rather strenuous requirements of proof)' 00
i>fiariotmeRy accepted nom and that the protected acts are aces js.re i
ami-not aeta jur'r gestio-tmTlt is worth noting that the imperii/gestionis distinc-
tion as to acts is essentially the same as the state/private distinction by which the
There is still one definitional problem: whether it is the purpose (object) or
nature (quality) which is the proper test of an act. There are authorities favoring
tlhel0ltlty c'fnt~e focuses on a` specific act-by-the entilf.
rule, is that instead of trying to find the sum of the attributes of an entity,
Bank was judged as an entity. The big difference, and the advantage of the new
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1977]
both, t
unwarr
purpos+
A d
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an acts
may al
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31
in
)e
a
to
at
lly
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aw
is a
of
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the
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ority
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but it has been recognized that the "purpose" test leaves room for expansion of sovereign immunity by the expansion of government
both,
The he "nature" test was dopted unanimously by the Trendtex court.
puurposes rposes. unwarranted
47 ; ? that it may incorporate the particular
A disadvantage of the nature teat -, - -
t. ne of what
i
hd 20th century no
among municipal laws. It
applying state's 19t ann differences
an act of state. lnls will tcau 11i, to be , as -
may also prove
ethlon at gtate transactions are I (or to will long remain) divisible
because it is doubtful
into just two categories---commercial and political-no matter how much Latin
one intones.48
The Attachment of the Central Bank's (or Nigeria's) Funds aintif The most critical part of sovereign immunity f for chef Bank'sf ands
s were
was that concerning the availability lea was
e money
the rK e gn reset espof Nigeria.sOddly, this q estonhwas given short
actually y the fo g
shrift by the court. They found, with little discussion, ?`' that the availability of nciples immunity for the funds ds depended eed ems precisely
with proceedingriso abruptly its avail-
ability to the Bank. 50 problems
?f th Privy Council which ap-
First, the court plainly ignores a - -.- ---- -
S1 It is true that the decisions of the Privy
proached the problem differently. Appeal,
are not binding on the Court of , but they are persuasive Sion e
authority" and should not be ignored.
n the municipal sytem'nisho t
international if ithe deci
previous section, on the place
be implemented, there should have been a more thorough inquiry into what the
international
whether law on the point
restrictive immunity is the rule. Failure to make the
question whethe er absolute or this particular issue is
fact that
the
b
h
inquiry is hardly excuse
t he general Third, the claim of the
considerably more divided Nigerian government gives the dispute a political flavor. Proper consideration of
this claim would seem necessarily include discssion of
a ecuf
five. thanprtheopriety
judicuary rather-
having decisions on such matters tIt was apparently helpful that a German court, in a case arising out of the
same circumstances, 54 came to the same conclusion; but there was no discussion
of the rationale of that decision.
47 2 G. DELAUME, TRANSNATIONAt. CONTRACTS, Ch. ?CI, 16 (1975).
48. 2 D. O'CONNELL, INTERNATIONAL LAW, 845-46 (2d ed. 1970). It is interesting to
note that the French, who developed the modern use of the distinction as a means of
supra estionis) court jurisdictions, have
differentiating ead hat pu . Laut (imperii) from
note 3, at 224.
ed it it eo that
expressed misgivings but concurred, [1977] 2 W.L.R. at 382.
Stephens purpose.
Indonesia, [1955] A.
50. Id. at 371, 389.
n Ysmael & Co., Inc. v. Government of the Republic of
hject) or
J
ua
. 31, 72 (p.C. 1954).
52. See note 40 supra .
53. 2 D. O'CONNELL, INTERNATIONAL LAW, 844-45 (2d ed. 1970).
54. See note 8 supra.
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This is not to say that the decision to make the immunity of the funds to
attachment depend on the same principles as the immunity of the Bank to suit is
indefensible. But the announcement of principles and their application are
different matters. It is not perfectly clear how the restrictive immunity principles
are to be applied in a situation like the present one. What is sufficient to mark
the funds as commercial in the face of Nigeria's claim? The House of Lords may
have further thoughts on the point.
The English Court of Appeal has made several contributions to international
law in its decision in the Trendtex case. The court has loosened the bonds of
domestic precedent and thus internationalized international law in England.
Perhaps this will lead to similar developments in other countries as well. 'IN
court has also moved England into line with the rest of Europe (which is
important to the EEC) and with the rest of the industrial West (which is
important to the OECD in its continuing negotiations with the Third World) on
the question of sovereign immunity. Finally, even if the House of Lords reverses
on every issue (which seems unlikely) the decision contributes to the growing
literature on the restrictive immunity doctrine.
Stephen G. Nagle*