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Commisimpex v. Republic of Congo

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Commisimpex v. Republic of Congo, No. 13-17.751.Athttps://www.legifrance.gouv.fr. Court of Cassation, 1st Chamber, May 13, 2015.

Published online by Cambridge University Press:  07 September 2017

Eloïse Glucksmann
Eloïse Glucksmann*
Affiliation:
University Paris II, Panthéon-Assas
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Extract

The law in France regarding waivers of foreign state (or sovereign) immunity from execution of judicial judgments (based largely on consideration of international law principles) has recently undergone significant developments. Previously, French case law had required a foreign state's waiver of immunity from execution to be both express and specific to consider valid the attachment of foreign state property allocated to public services (including bank accounts used for the functioning of both diplomatic missions and delegations to international organizations). In 2015, the French Court of Cassation relaxed the criteria it had previously required for giving effect to waivers of sovereign immunity in such situations, thus facilitating the ability of judgment creditors to attach foreign state property in France. Its decision in the Commisimpex v. Republic of Congo case appeared to put an end to that requirement by abandoning the criterion of a “specific” waiver on the ground that “customary international law does not require a waiver of immunity from execution other than express.” In December 2016, however, the French government enacted new legislation reinstating the need for a specific waiver of immunity for the attachment of the property as well as bank accounts of foreign embassies and diplomatic missions and additionally requiring a court order authorizing the attachment or seizure. As a result, France has now embraced a distinctly more protective approach to the immunity of foreign state assets from attachment and execution of judicial judgments.

Keywords

French Court of Cassationstate immunity from executionwaiver of immunityattachment of bank accounts
Type
International Decisions: Edited by David P. Stewart
Information
American Journal of International Law , Volume 111 , Issue 2 , April 2017 , pp. 453 - 460
Copyright
Copyright © 2017 by The American Society of International Law 

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References

1 Commisimpex v. Republic of Congo, Cass. Civ. 1st, No. 13–17.751 (May 13, 2015), available at https://www.legifrance.gouv.fr. For critical comment, see Watt, Horatia Muir, 3 Rev. Crit. DIP 652 (2015)Google Scholar; Alland, Denis & Graff, Thibaut Fleury, 1 Rev. Crit. DIP 3 (2016)Google Scholar; Cohen, Daniel, 3 Rev. Arb. 810 (2016)Google Scholar; Sawah, Sally El & Leboulanger, Philippe, 143 Clunet 141 (2016)Google Scholar.

2 Articles 59 and 60 of Law No. 2016–1691 on “Transparency, Fight Against Corruption and the Modernization of Economic Life,” known as the “Sapin 2 Law,” available at https://www.legifrance.gouv.fr. The statute was adopted by Parliament on November 8, 2016 and promulgated on December 9, 2016, the day after the French Constitutional Council validated it. See Constitutional Council, Decision No. 2016–740 DC, at http://www.conseil-constitutionnel.fr. The statute was formally published in the French Official Journal on December 10, 2016.

3 Ct. App. (Versailles), No. 11/08024 (Feb. 9, 2012).

4 Ct. App. (Versailles), No. 11/09073 (Apr. 12, 2012).

5 Ct. App. (Versailles), No. 11/09073 (Nov. 15, 2012).

6 Civil Enforcement Proceedings Code (Fr.), Art. L. 111-1-1.

7 Id. Art. 111-1-2.

8 Id.

9 Id. Art. L. 111-1-3.

10 See, e.g., Eurodif v. Iran, Cass. Civ. 1st, No. 82-12.462 (Mar. 14, 1984); Paulsson, Jan, Sovereign Immunity from Jurisdiction: French Case Law Revisited, 19 Int'l Lawyer 277 (1985)Google Scholar.

11 France is not a party to the 1972 European Convention on State Immunity (ETS 74 16.V.1972) but has ratified the 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property and implemented it by statute adopted on June 28, 2011 (L. 2011-734). The convention itself is however not yet in force.

12 Prosecutor v. S.A. Ipitrade International, Tribunal de Grand Instance (Paris) (Sept. 12, 1978), reproduced with Prosecutor v. Société LIAMCO, Tribunal de Grande Instance (Paris) (Mar. 5, 1979), both at 106 Clunet 857 (1979) (with annotation by Bruno Oppetit).

13 See Benvenuti & Bonfant v. Congo, Tribunal de Grand Instance (Paris) (Jan. 13, 1981); Benvenuti & Bonfant v. Congo, Ct. App. (Paris) (June 26, 1981), available, respectively, at 108 Clunet 365 and 843 (1981) (with annotation by Bruno Oppetit). See also 3 Rev. Arb. 264 (1982); Bourel, Pierre, 2 Rev. Arb. 119 (1982)Google Scholar.

14 Civil Procedure Code (Fr.), Art. 423.

15 The Vienna Convention on Diplomatic Relations (VCDR), 500 UNTS 95, 23 UST 3227 (1961), does not specifically grant immunity to embassy bank accounts. Article 22, paragraph 3, only grants immunity to “[t]he premises of the mission, their furnishings and other property thereon and the means of transports to the mission …,” which (at least textually) excludes from its scope bank accounts that are not located in the embassy.

16 Noga v. Russia, Ct. App. (Paris), No. 2000/14157, sec. 9 (Aug. 10, 2000) (“The mention without any precision … that the debtor waives any immunity in relation with the application of the award rendered against him in relation with the contract doesn't manifest the borrowing State will to waive its diplomatic immunity from execution and to allow a commercial company to block the functioning and actions of its embassies and representations abroad.”). See Pingel, Isabelle, 128 Clunet 116 (2001)Google Scholar.

17 NML Capital Ltd. v. Argentina, Cass. Civ. 1st, No. 09-72.057 (Sept. 28, 2011). See Cuniberti, Gilles, 139 Clunet 668 (2012)Google Scholar. A previous case had addressed the issue, but the question of the public use of property of a Republic of Congo's instrumentality was raised belatedly, see Connecticut Branch v. Congo, Cass. Civ. 1st, No. 04-13.108 (Feb. 6, 2007).

18 Id., para. 7.

19 See NML Capital Ltd. v. Argentina, Cass Civ. 1st, No. 10-25.938 (Mar. 28, 2013); NML Capital Ltd. v. Argentina, Cass. Civ. 1st, No. 11-10.450 (Mar. 28, 2013); NML Capital Ltd. v. Argentina, Cass Civ. 1st, No. 11-13.323 (Mar. 28, 2013). See 140 Clunet 899 (2013) (report by Agnès Maitrepierre and annotation by Gilles Cuniberti); Franc-Menget, Laurence, 4 Rev. Arb. 989 (2013)Google Scholar; Watt, Horatia Muir, 3 Rev. Crit. DIP 671 (2013)Google Scholar.

20 For an overview of the different opinions about the inclusion in customary law of the requirement for a specific waiver to immunity from execution, see Alland & Fleury Graff, supra note 1, spec. sec. 19.

21 See Russia Federal Law No. 297-FZ (Nov. 3, 2015), available (in Russian) at www.pravo.gov.ru. Article 5 of this law, which went into force on January 1, 2016, established the reciprocity principle for the jurisdictional immunity of foreign states.

22 A Belgium law dated August 23, 2015 regulates the attachment of property owned by a foreign state, a supranational or an international organization, by adding a new Article 1412 quinquies in the Belgium Judicial Code to protect foreign state assets. See Belgian Official Gazette, at 56011 (Sept. 3, 2015) (L. 2015-08-23/13, Art. 2, 090), at www.ejustice.just.fgov.be/cgi/welcome.pl. The Belgium Constitutional Council, in a decision dated April 27, 2017, validated this new law, especially the condition of a prior authorization awarded by a judge, but annulled the condition of a specific waiver to attach all type of foreign state property. The condition of a specific waiver was only left to validly attach property used or intended for use in the performance of diplomatic and representation missions of the foreign State. French and Belgium law are now much alike on that question. See Belgium Constitution Council Decision No. 48/2017, at http://www.const-court.be/fr/common/home.html.

23 Sapin 2 Law, supra note 2, Art. L. 111-1-2.

24 Id. Art. L. 111-1-3.

25 Id. Art. L. 111-1-1.

26 Impact Study of the Sapin 2 Statute, spec. 94, available at http://www.economie.gouv.fr/transparence-lutte-contre-corruption-modernisation.

27 NML Capital Ltd. v. France, App. No. 23242/12, Eur. Ct. H.R. (Jan. 13, 2015) (inadmissibility decision). According to the French Conseil d’État advice (No. 391.262) dated March 24, 2016 on the Sapin 2 Law Project, at http://www.conseil-etat.fr/Decisions-Avis-Publications/Avis, the new provisions are compatible with France's international obligations. A recent Court of Cassation decision held that rejecting a private party's effort to attach funds at the Bank of Central African States (whose assets are protected by an international convention) does not amount to a disproportionate interference to the right of access to a tribunal if it is still possible to hold France liable. See Bank of Central African States v. Mr. X., Cass. Civ. 1st, No. 15-18.646 (May 25, 2016); Cuniberti, Gilles, 143 Clunet 1206 (2016)Google Scholar; Poissonnier, Ghislain, 144 Clunet 139 (2017)Google Scholar.

28 Article VII(B) of the Draft Articles for a Convention on State Immunity prepared by the International Law Association (22 ILM 287, 291 (1983)) provided that: “In the case of mixed financial accounts that proportion duly identified of the account used for non-commercial activity shall be entitled to immunity.”

29 LIAMCO, supra note 12.