Diplomatic immunity denied by UK Supreme Court in relation to alleged breaches of modern slavery laws

London is home to one of the largest diplomatic communities in the world, with over 160 embassies. In a significant judgment by a majority of three, the UK Supreme Court (the Court) in Basfar v Wong [2022] UKSC 20 has confirmed that diplomats are unable to rely on their diplomatic immunity in response to alleged breaches of modern slavery laws. The majority found that the alleged breaches fell within the “commercial activity” exception in Article 31(1)(c) of the Vienna Convention on Diplomatic Relations 1961 (the Convention) on the basis that the allegations constituted “modern slavery“. The Court also considered that there is a distinction between “modern slavery“, which does engage the “commercial activity” exception, and employing a domestic worker, which does not itself constitute the exercise of a “commercial activity” by a diplomatic agent within the meaning of the exception.

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ICSID MEMBER STATES APPROVE AMENDED 2022 ARBITRATION RULES

On 21 March 2022, the member states of the International Centre for the Settlement of Investment Disputes (ICSID) approved wide-ranging amendments to the ICSID Regulations and Rules, which will come into effect on 1 July 2022. The approved amendments are the product of a rule amendment project which commenced in October 2016, pursuant to which the ICSID Secretariat has published six working papers (WPs) detailing successive changes to the amendments proposed (see our previous PIL Notes post on WP 5). The stated goals of the amendments are to “modernise, simplify and streamline the rules, while also leveraging information technology to reduce the environmental footprint of ICSID proceedings“.

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ENGLISH COMMERCIAL COURT DETERMINES THAT A STATE-OWNED AIRLINE IS NOT ENTITLED TO BE SERVED IN ACCORDANCE WITH THE STATE IMMUNITY ACT

In AELF MSN 242, LLC (a Puerto Rico limited liability company) v De Surinaamse Luchtvaart Maatschappij N.V. D.B.A. Surinam Airways [2022] EWHC 544 (Comm), the English Commercial Court (the “Court“) considered whether the national flag carrier of Suriname (“SLM“) was entitled to be served with proceedings in accordance with s12(1) of the State Immunity Act 1978 (the “SIA“). The SIA confers certain general immunities and privileges on foreign States and prescribes a mandatory process for the service of documents instituting proceedings “against a State“. SLM argued that even though it was not an executive organ of the State (but instead a State-owned “separate entity“, as described in s14 SIA), it should be served in accordance with the SIA. However, the Court held that separate entities are not entitled to be served with proceedings in the manner that States are required to be served under s12(1) SIA.

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REMINDER: 43RD FA MANN LECTURE TAKING PLACE 18 NOVEMBER 2021: “INTERNATIONAL LAW BEFORE UNITED KINGDOM COURTS – A QUIET REVOLUTION”

A reminder that the 43rd of a series of annual lectures in honour of the late Dr FA Mann QC (Hon) (1907-1991) will take place in London on 18 November 2021. This series of lectures is arranged by the Partners of Herbert Smith Freehills LLP and given under the auspices of the British Institute of International and Comparative Law.

This year’s lecture will be delivered by Justice of the Supreme Court, Lord Lloyd-Jones, on the topic of “International law before United Kingdom Courts – a quiet revolution”. The event is a public lecture and admission is free. Entry is on a first come, first served basis and an early arrival is recommended.

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43RD FA MANN LECTURE TAKING PLACE 18 NOVEMBER 2021: “INTERNATIONAL LAW BEFORE UNITED KINGDOM COURTS – A QUIET REVOLUTION”

The 43rd of a series of annual lectures in honour of the late Dr FA Mann QC (Hon) (1907-1991) will take place in London on 18 November 2021. This series of lectures is arranged by the Partners of Herbert Smith Freehills LLP and given under the auspices of the British Institute of International and Comparative Law.

This year’s lecture will be delivered by Justice of the Supreme Court, Lord Lloyd-Jones, on the topic of “International law before United Kingdom Courts – a quiet revolution”. The event is a public lecture and admission is free. Entry is on a first come, first served basis and an early arrival is recommended.

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UNCTAD PUBLISHES REPORT ON INVESTOR-STATE DISPUTE SETTLEMENT CASES IN 2020

The United Nations Conference on Trade and Development (“UNCTAD“) has recently published its report (available here) on investor-state dispute settlement (“ISDS“) cases in 2020 (“Report“). The Report confirms that in 2020, investors initiated at least 68 publicly known ISDS cases pursuant to various international investment agreements (“IIAs“). This marks an increase in the number of ISDS cases since 2018 (although there was a dip in cases in 2019), and brings the cumulative total of known ISDS cases count since 1987 (the year of the first treaty-based ISDS case), to 1,104. The Report contains useful annexes listing (i) all known-treaty based ISDS cases initiated in 2020 and (ii) respondent and home States in known treaty-based ISDS cases between 1987 and 2020.

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SUPREME COURT DECIDES PROCESS FOR SERVICE OF DOCUMENTS INSTITUTING PROCEEDINGS ON A STATE IN GENERAL DYNAMICS V LIBYA

In General Dynamics United Kingdom Ltd v State of Libya [2021] UKSC 22 the Supreme Court (the “Court“), by a majority of 3 to 2, held that s12(1) State Immunity Act 1978 (the “SIA“) contains a “mandatory and exclusive” procedure for the service of documents instituting court proceedings on a State through the Foreign, Commonwealth & Development Office (“FCDO“). This cannot be dispensed with or altered even in exceptional circumstances, and it applies to proceedings to enforce an arbitral award under the New York Convention pursuant to s101 Arbitration Act 1996.  In the particular context of enforcement of arbitration awards against a State, the document that was required to be served for the purposes of s12(1) would be the “arbitration claim form where the court requires it to be served” or “otherwise it will be the order granting permission to enforce the award“. The Court was unanimous in deciding that the FCDO has no discretion on whether to effect service, and must use its “best endeavours to effect service in accordance with section 12“.

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EXPERT PANEL DEFINES ‘ECOCIDE’, FOR POTENTIAL ADOPTION AS A CRIME TO BE PROSECUTED BY THE INTERNATIONAL CRIMINAL COURT

On 24 June 2021, an international panel of legal experts (the Panel) published a legal definition of ‘ecocide’ (the Proposal, link) proposed to be adopted as a fifth crime to the Rome Statute of the International Criminal Court (the ICC or the Court). The Rome Statute addresses crimes that are deemed to be of international concern: genocide, crimes against humanity, war crimes and the crime of aggression. The ICC complements the jurisdiction of national criminal legal systems, and does not replace them (see Article 1, Rome Statute). The Court prosecutes cases as a court of “last resort”, only when States are unwilling or unable to do so.

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LONDON CLIMATE ACTION WEEK 26 JUNE – 4 JULY 2021

We are proud to be a part of London Climate Action Week 2021 (LCAW), the annual event bringing together world-leading climate professionals and communities across London and beyond to find practical solutions to climate change.

Founded in 2019, LCAW is the largest independent climate change event in Europe, helping to shape our future into one that is net-zero, equitable and resilient. Rooted in London, our diverse, international city, LCAW uses its global perspective to spark climate action around the world.

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