Benkharbouche v Secretary of State for Foreign & Commonwealth Affairs; Libya v Janah  UKSC 62
On appeal from  EWCA Civ 33
These cases considered whether granting immunity from suit under the State Immunity Act 1978 engages, and breaches, the Respondents’ rights under the ECHR and EU Charter.
The Supreme Court unanimously dismissed the Secretary of State’s appeal and affirmed the order of the Court of Appeal. The State Immunity Act 1978, s 4(2)(b) and 16(1)(a) would not apply to the claims derived from EU law discrimination, harassment and breach of the Working Time Regulations. Under the State Immunity Act 1978, s 4(2)(b), a person’s nationality and residence at the date of the employment contract were not deemed proper grounds for denying a person access to the courts in respect of their employment in this country.
A Court could identify a rule of customary international law only if enough states follow a consistent practice
Similarly, the Court rejected the argument that absolute immunity applied in relation to the employment of embassy staff under the State Immunity Act 1978, s 16(1)(a) and under customary international law. Both s 4(2)(b) and 16(1)(a) of the 1978 Act which confer immunity in English law were held to be incompatible with the ECHR, art 6 and also the EU Charter of Fundamental Rights. EU law prevails over English law in the event of conflict and thus both cases were to be remitted to the Employment Tribunal to determine the claims based on EU law on their merits. The Court rejected the Secretary of State’s arguments based on state immunity and held that whilst there was a long-standing consensus of states in favour of immunity, there had never been sufficient international consensus for an absolute rule in customary international law. A Court could identify a rule of customary international law only if enough states follow a consistent practice, on the footing that it is a legal obligation.
To watch the hearing, please visit: Supreme Court Website (6 Jun 2017 afternoon session)
Reyes v Al-Malki & Anor  UKSC 61
On appeal from  EWCA Civ 32
This case considered whether an employment tribunal has jurisdiction to hear claims brought by the appellant, under the exception to diplomatic immunity contained in the Vienna Convention on Diplomatic Relations, 1961, art 31(1)(c), and whether the respondents were validly served with proceedings.
The Supreme Court unanimously allowed the appeal and dismissed the cross-appeal.
The cross-appeal was dismissed as the Court held that the claim form was validly served with no violation of the protections conferred on diplomats and their residences respectively by the Convention, art 29 and 30 as the service of a claim form by post merely convey information, not involving any trespass against the diplomat’s person or residence.
The appeal was allowed because the Convention draws a fundamental distinction between the acts of a diplomat which are performed in the exercise of an “official function” and those which are not. Whilst immunity attaches to both types of act whilst the diplomat is in post, upon leaving the receiving state, immunity is ordinarily limited to a “residual immunity” under art 39(2) , attaching only to the former acts. The employment of the appellant to carry out domestic tasks in the residence of the respondents was not an act in the exercise of diplomatic functions and therefore, as the respondents have now left the UK at the end of the posting, they cannot claim residual immunity against claims regarding the acts, and as such the Supreme Court remitted the case to the employment tribunal to be determined at trial.
To watch the hearing, please visit: Supreme Court Website (15 May 2017 morning session) (15 May 2017 afternoon session) (16 May 2017 morning session) (16 May 2017 afternoon session) (17 May 2017 morning session) (17 May 2017 afternoon session)
Taurus Petroleum Ltd v State Oil Marketing Company of the Ministry of Oil, Republic of Iraq  UKSC 64
On appeal from:  EWCA Civ 835
This case considered the identity of the beneficiary under letters of credit, the situs of debts under letter of credit, and whether there is a free-standing principle of honest dealing beyond the rule that a judgment creditor cannot execute against property that does not belong to the judgment debtor. It also considered the correct basis on which a court should exercise its discretion to make receivership orders, and the circumstances in which the State Immunity Act 1978, ss 13(2)(b), 14(2) and 14(4) allow immunity from execution.
International policy favours the efficient recognition and enforcement of arbitration awards
The Supreme Court allowed the appeal by a majority of three to two, reversing the High Court and Court of Appeal decisions which had set aside arbitral orders in the appellant’s favour. The Court held that the appellant was entitled to the third party debt order as the respondent was the sole beneficiary of the letters of credit, and identified as such in them, and as it was the sole creditor of the London branch of Crédit Agricole S.A. The Supreme Court considered that the debts were located in England, because that was where they were recoverable, and that there is no independent rule that a third party debt order can be made only in respect of property with which the judgment debtor can “honestly deal”. The Court concluded that a receivership order was appropriate as it was predictable that the respondent would be sued in England and domestic and international policy favours the efficient recognition and enforcement of arbitration awards.
Editors’ Note: These case summaries originally appeared on the UKSCBlog, and are reproduced with permission and thanks.