English Court of Appeal finds good arguable case that public policy exception applies to the foreign Act of State Doctrine allowing Ukraine to argue duress in claim under Eurobonds

In Ukraine v The Law Debenture Trust Corporation plc [2018] EWCA Civ 2026 the English Court of Appeal (the Court) partially upheld an appeal in favour of the state of Ukraine (Ukraine), reversing in part the summary judgment granted to The Law Debenture Trust Corporation plc (the Claimant) by the Commercial Court.

The Claimant brought the claim as the trustee of notes with a nominal value of US$3 billion (the Notes) after Ukraine defaulted on the payment of principal and the final instalment of interest. The sole subscriber of the Notes was the Russian Federation (Russia).

In allowing the appeal in part, the Court found that there was a good arguable case that the public policy exception applied to the foreign act of state doctrine and that Ukraine’s defence of duress – based on allegations of breaches of ius cogens norms of international law and treaty provisions by Russia – was therefore justiciable.

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English Court of Appeal confirms that the estate of a head of state who dies in office enjoys immunity only in respect of official acts

In the recent decision of Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz [2015] EWCA Civ 481, the English Court of Appeal (the Court) confirmed that the immunity afforded by the UK State Immunity Act 1978 (the SIA) applies to a head of state who dies in office in the same way as it applies to a head of state who stands down from office during his or her lifetime. In short, if the estate is sued, immunity exists only for official acts, and not private acts, committed before the head of state’s death in office. As noted by the Court of Appeal, the case was not covered directly by authority and appears to have been the first case of its kind to have dealt directly with this question of public international law.

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