Abstract
Foreign central banks traditionally enjoy a broad immunity from enforcement measures within the wider framework of immunity from execution granted to foreign States. Nevertheless, divergent approaches to sovereign immunity by some national legislation and courts have somehow limited the scope of this rule, in particular with reference to claims promoted by victims of serious international crimes (e.g. terrorism, gross violations of human rights, etc.). Said developments may raise implications also in the matter of execution against foreign central banks, influencing the emergence of new international rules. Emblematic is the case of the Central Bank of Iran which has been the subject of a number of enforcement proceedings promoted against its parent State for its role in supporting international terrorism.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Similar content being viewed by others
Notes
- 1.
- 2.
The UNCSI has been adopted during the 65th plenary meeting of the UN General Assembly by resolution A/59/38 of 2 December 2004 and open for signature from 17 January 2005.
- 3.
In accordance with Article 30 of the UNCSI, the Convention ‘shall enter into force on the thirtieth day following the date of deposit of the thirtieth instrument of ratification, acceptance, approval or accession with the Secretary-General of the United Nations.…’. To date, 28 States have signed the Convention and 22 States have ratified it (Austria, Czech Republic, Finland, France, Japan, Equatorial Guinea, Kazakhstan, Iran, Iraq, Italy, Latvia, Lebanon, Liechtenstein, Mexico, Norway, Portugal, Romania, Saudi Arabia, Slovakia, Spain, Switzerland and Sweden).
- 4.
See Wuerth (2019): the first part of this paper will methodologically follow a reconstructive path and an examination of the State practice similar to the one followed by the Author though focusing on national legislation enacted following the adoption of the UNCSI in order to highlight its possible reflections on them.
- 5.
See Gaukrodger (2010), p. 24. Although for a long time, foreign central banks have not enjoyed a special immunity as they were not considered linked to their parent State, but separate and independent entities thus not entitled to claim sovereign immunity (see e.g. Trendtex Trading Corporation v. Central Bank of Nigeria, United Kingdom, Court of Appeal, Civil Division, 13 January 1977, 64 ILR 111, 134-1), over time State legislations have granted them a certain degree of immunity from measures of constraint, providing them with a privileged status, although in a very diversified manner.
- 6.
E.g. Italy does not have a specific legislation on sovereign immunity. Only by Art. 1 of the decree-law 28 April 2010, no. 6, Italy suspended the effectiveness of the enforceable titles on assets of foreign States or international organizations, if their immunity from Italian jurisdiction was controversial and the issue gave rise to a claim before the ICJ in the Jurisdictional Immunities case on the compensation due to individuals who were victims of war crimes by German occupation troops during World War II.
- 7.
See e.g. Art. 35(1), Australia Foreign States Immunities Act.
- 8.
See e.g. Section 14(4) of the UK Sovereign Immunity Act (SIA). In AIC v. Central Bank of Nigeria, [2003] EWHC 1357 (2003), the British High Court ruled that ‘moneys in a bank account of a central bank with another bank are immune from execution irrespective of the source of the funds in the account or the use of the account or the purpose for which the account is maintained’. However, before the entry into force of the SIA, the UK courts did not treat foreign central bank accounts differently from ordinary bank accounts; see e.g. Trendtex Trading Corporation v. Central Bank of Nigeria, United Kingdom, Court of Appeal, Civil Division, 13 January 1977, 64 ILR 111; see also Hispano Americana Mercantil S.A. v. Central Bank of Nigeria, United Kingdom, Court of Appeal, Civil Division, 25 April 1979, 64 ILR 221. On absolute immunity of FCBs, see also Singapore Act no. 19 of 1979 (State Immunity Act), Chapter 313, Article 16(4).
- 9.
ICJ, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), judgment, ICJ Reports 2012.
- 10.
ICJ, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), judgment, ICJ Reports 2012, para. 113.
- 11.
According to the ICJ, ‘Even if a judgment has been lawfully rendered against a foreign State, in circumstances such that the latter could not claim immunity from jurisdiction, it does not follow ipso facto that the State against which judgment has been given can be the subject of measures of constraint on the territory of the forum State or on that of a third State, with a view to enforcing the judgment in question’; ICJ, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), judgment, ICJ Reports 2012, para. 113.
- 12.
- 13.
The ICJ cites at para. 118 the decision of the German Constitutional Court (Bundesverfassungsgericht) of 14 December 1977 (BVerfGE, Vol. 46, p. 342; ILR, Vol. 65, p. 146), the judgment of the Swiss Federal Tribunal of 30 April 1986 in Kingdom of Spain v. Société́ X (Annuaire suisse de droit international, Vol. 43, 1987, p. 158; ILR, Vol. 82, p. 44), as well as the judgment of the House of Lords of 12 April 1984 in Alcom Ltd. v. Republic of Colombia ([1984] 1 AC 580; ILR, Vol. 74, p. 170) and the judgment of the Spanish Constitutional Court of 1 July 1992 in Abbott v. Republic of South Africa (Revista española de derecho internacional, Vol. 44, 1992, p. 565; ILR, Vol. 113, p. 414).
- 14.
ICJ, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), judgment, ICJ Reports 2012, para. 118.
- 15.
UNCSI, Preamble and Article 5; under the New York Convention, a State is required to refrain from exercising jurisdiction against another State by ensuring that its courts automatically ascertain the immunity granted to a foreign State except in cases expressly provided for by the Convention; see Article 6.
- 16.
Moreover, said property must be located in the territory of the State of the forum and must have a ‘connection’ with the entity against which the proceeding was directed; see UNCSI, Article 19(c).
- 17.
Wautelet, Immunity of Foreign Central Banks Assets in Belgium. 2 September 2008. conflictoflaws.net. Accessed 15 April 2021.
- 18.
See Articles 18 and 19, subparagraphs (a) and (b) of the UNCSI recalled by Article 21(2). It is interesting to note that the ILC’s Special Rapporteur on Jurisdictional Immunities of States and Their Property (1991) suggested the addition of the words ‘and use for monetary purpose’ at the end of paragraph dedicated to the immunity of the assets of FCBs but said clarification was not included for lack of general support; see Yearbook of the International Law Commission, 1990, vol. II, para. 227; see also Draft Articles on Jurisdictional Immunities of States and Their Property, with commentaries, text adopted by the International Law Commission at its forty-third session, in 1991, and submitted to the General Assembly as a part of the Commission’s report covering the work of that session (A/46/10, at para. 28), 59.
- 19.
See Giuffrida (2015), p. 284, n 57.
- 20.
As already noted, a broad overview is provided by Wuerth (2019).
- 21.
E.g. under the Israeli Foreign Sovereign Immunity Law 5769-2008, FCBs are substantially considered equivalent to foreign States and their assets are immune to the extent they are not commercial assets, or property situated in Israel to which the foreign State is entitled by the way of succession or as bona vacantia, or immovables situated in Israel; see Foreign Sovereign Immunity Law 5769-2008, Articles 1, 16 and 18.
- 22.
France signed the UNCSI on 17 January 2007 and ratified it on 12 August 2011.
- 23.
See Act no. 2005-842 of 26 July 2005.
- 24.
Act no. 2005-842 of 26 July 2005, Article L. 153-1 para. 2.
- 25.
French legislation on the matter has been also carefully analyzed by Wuerth (2019), p. 12ff.
- 26.
The French legislator enshrined and developed the principles already expressed by the Cour de Cassation in the case Sonatrach, where the Court found that the assets of public entities, distinct from the foreign State, whether or not enjoying legal personality, which are part of a group of assets (‘patrimoine’) which been dedicated to activities in the private law sector, may be seized by all creditors of the public entity: see French Court of Cassation, Société Sonatrach v. Migeon, 1 October 1985, 77 ILR 525: ‘Les biens des organismes publics, personnalises ou non, distincts de l’Etat étranger, lorsqu’ils font partie d’un patrimoine que celui-ci a affecte a une activité principale relevant du droit prive, peuvent être saisis par tous les créanciers, quels qu’ils soient, de cet organisme’; see also Cour de Cassation, Creighton Ltd v. Minister of Finance of Qatar and Others, 6 July 2000, 127 ILR 154, 155.
- 27.
Cour de Cassation, judgment of 11 January 2018 no.16-10.661.
- 28.
Ibid.
- 29.
E.g. see Cour de Cassation, judgment of 13 May 2015; see amplius Sportes and Simon (2016).
- 30.
Law no. 1691 of 10 December 2016.
- 31.
French Code of civil enforcement procedures, Article 111-1-1.
- 32.
French Code of civil enforcement procedures, Article 111-1-2.
- 33.
French Code of civil enforcement procedures, Article 111-1-2 (3), para. 2.
- 34.
Loi 2008-07-24/42 modifiant le Code judiciaire en vue d’instituer une immunité d’exécution à l’égard des avoirs de banques centrales étrangères et d’autorités monétaires internationales.
- 35.
See Article 1412 quater of the Judicial Code.
- 36.
Commentaire des Articles of the Proposition de Loi modifiant le Code judiciaire en vue d’instituer une immunité d’exécutionà l’égard des avoirs de banques centrales étrangères et d’autorités monétaires internationals, déposée par Mmes Annemie Roppe et Anne-Marie Baeke et M. Luk Van Biesen, Commentary to Art. 2, 8 February 2007, p. 3.
- 37.
See Wautelet (2008).
- 38.
Commentaire des Articles of the Proposition de Loi modifiant le Code judiciaire, p. 5.
- 39.
Ley Orgánica 16/2015 of 27 October 2015, Article 20.1(c). Spanish case law tends to reject immunity from execution in cases where the foreign central banks exclusively act jure gestionis: e.g. in a judgment rendered before the enactment of Law no. 6/2015, the Audiencia Provincial of Madrid rejected the request for recognition of immunity from execution filed by the National Bank of Cuba in a proceeding promoted by a German company with respect to a recognition of debt granted from the bank to the plaintiff considering that the FCB had acted as a private and therefore could not claim any kind of immunity; see Hachemie, Hamburger Chemikalien Gesellschaft mit Beschränker Haftung v. Banco Nacional de Cuba, Aranzadi Insignis (AP Madrid, April 10, 2000) [AC\2000\2362], cited in Montero and Castro (2019), p. 385.
- 40.
Federal Law no. 297-FZ of 3 November 2015 on the Jurisdictional Immunity of a Foreign State and the Property of a Foreign State in the Russian Federation.
- 41.
Explanatory Note to Bill on Jurisdictional Immunity of a Foreign State and a Foreign State’s Property in the Russian Federation.
- 42.
Ibid.
- 43.
Japan signed the UNCSI on 11 January 2007 and accepted it on 11 May 2010.
- 44.
Act no. 24 of April 24, 2009 on the Civil Jurisdiction of Japan with respect to a Foreign State, Article 4. In Japan, the Supreme Court since Tokyo Sanyo Trading Co Ltd v Islamic Republic of Pakistan (60-6 Minshu 2542, 1231/2003; Supreme Court, July 21, 2006) adopted restrictive immunity, affirming that a foreign State is not immune from the jurisdiction of the Japanese courts in respect of activities involving private law or business management, except that in particular cases.
- 45.
Act no. 24 of April 24, 2009 on the Civil Jurisdiction of Japan, Article 17.
- 46.
Ibid., Article 18.
- 47.
Ibid., Article 19.
- 48.
Ibid., Article 19 para. 2.
- 49.
See Wang (2015), p. 556: ‘from China’s perspective, the doctrine of restricted sovereign immunity has not yet become a rule of international law’.
- 50.
Law of the People’s Republic of China on Judicial Immunity from Compulsory Measures Concerning the Property of Foreign Central Banks, adopted at the 18th Meeting of the Standing Committee of the Tenth National People’s Congress of the People’s Republic of China on October 25, 2005, Article 1.
- 51.
In 2005, China has signed but not ratified the UNCSI.
- 52.
Zhu (2007), p. 76.
- 53.
Law of the People’s Republic of China on Judicial Immunity, Article 3.
- 54.
- 55.
Ley 26961 of 7 August 2014, Art. 1.
- 56.
Emphasis added; this exception therefore provides for a reference to activities carried out by the FCB outside the broader criterion of ‘its own functions’ and not to the nature of the activity (commercial or otherwise) carried out or the purpose of the assets held.
- 57.
Ley 26961, Article 2, para. 2.
- 58.
Laborias (2016).
- 59.
Corte di Cassazione, judgment no. 5044/2004 (‘Ferrini’ judgment): according to the Italian Supreme Court functional immunity cannot be applied when the acts performed, even jure imperii, are an international crime: in that case there is no valid reason to hold the immunity of the State.
- 60.
For this doctrine, inaugurated by Italian Constitutional Court, judgment no. 238/2014 (reported inter alia in Rivista di diritto internazionale, 2015, 237, with commentary by E. Cannizzaro, 126) see para. 4.2.
- 61.
ICJ, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), judgment, ICJ Reports 2012, paras. 58, 93. In Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), judgment, ICJ Reports 2002, para. 60 the Court also held that ‘While jurisdictional immunity is procedural in nature, criminal responsibility is a question of substantive law. Jurisdictional immunity may well bar prosecution for a certain period or for certain offences; it cannot exonerate the person to whom it applies from al1 criminal responsibility’.
- 62.
Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), judgment, ICJ Reports 2002, para. 113.
- 63.
Verlinden B. N. v. Cent. Bank of Nigeria, 461 U.S. 480, 488, 103 S. Ct. 1962, 76 L. Ed. 2d 81 (1983).
- 64.
E.g. if the foreign State waives immunity, or the action is based upon a commercial activity carried on in the United States by the foreign State. Other exceptions also cover most non-commercial torts occurring in the US and arbitration; see amplius FSIA §1605.
- 65.
The list of designated State sponsors of terrorism is published on April 30 of each year. Currently, Iran, Syria and Sudan are designated by the US as State sponsors of terrorism.
- 66.
In particular, the statute introduced the new §1605B of the US Code establishing that a foreign State shall not be immune from suits seeking money damages for personal injury or death, or for injury to property, occurring in the United States that is caused by (1) ‘an act of international terrorism in the United States’ and (2) a tortious act of a foreign State or its officials ‘regardless where the tortious act or acts of the foreign State occurred’. The tortious act of a foreign State may not, however, be an omission or ‘constitute mere negligence’.
- 67.
E.g. §1610(a)(7) provides that property in the United States of a foreign State that is used for a commercial activity shall not be immune from attachment and execution where the plaintiff holds a §1605A judgment against the foreign State, while §1610(b)(3) provides that any property of the agency or instrumentality of a foreign State engaged in commercial activity in the United States shall not be immune from attachment and execution in satisfaction of a judgment on a claim for which the agency or instrumentality is not immune under §1605A. Moreover, §1610(g) provides that both the property of a foreign State against which a judgment is entered under §1605A and the property of an agency or instrumentality of such a State (including ‘property that is a separate juridical entity or is an interest held directly or indirectly in a separate juridical entity’) are subject to attachment and execution. In Rubin v. Islamic Republic of Iran, 583 U.S. (2018), the US Supreme Court held that §1610(g) does not provide a freestanding basis for parties holding a judgment under §1605A to attach and execute against the property of a foreign State; rather, for §1610(g) to apply, the immunity of the property at issue must be rescinded under a separate provision within §1610.
- 68.
Emphasis added.
- 69.
See, e.g., Ministry of Def. & Support for the Armed Forces of the Islamic Republic of Iran v. Cubic Def. Sys., Inc., 385 F.3d 1206, 1223–24 (9th Cir. 2004).
- 70.
E.g. in Weston Compagnie de Finance et d’Investissement, S.A. v. Republica del Ecuador, 823 F. Supp. 1106, 1111 (S.D.N.Y. 1993) the US Court hold that the funds in a central bank account used to finance commercial transactions of private parties were not immune because the funds were not ‘held for its own account’.
- 71.
H.R. Rep. no. 94-1487, at 31 (1976), reprinted in 1976 U.S.C.C.A.N. 6604, 6630, cited in Note, Too Sovereign to be Sued: Immunity of Central Banks in Times of Crisis, Harvard Law Review 124, no. 2 (2010), 553.
- 72.
In NML Capital, Ltd. v. Banco Central de la Republica Argentina, the Second Circuit stated that ‘[w]here funds are held in an account in the name of a central bank or monetary authority, the funds are presumed to be immune from attachment [emphasis added] under §1611(b)(1)’. Therefore, any funds that are used for central banking functions in the sense outlined by the Court—i.e. interpreting the expression in ordinary meaning—should be presumed as immune, even if they are characterized as commercial. See NML Capital, Ltd. v. Banco Central de la República Argentina, no. 10-1487- cv(L), — F.3d —, 2011 WL 2611269, pp. *19–20 (2d Cir. July 5, 2011); see also Dickinson et al. (2004), p. 14. See most recently Continental Transfer Technique, Limited v. Federal Government of Nigeria, no. 08-2026 (PLF), United States District Court, District of Columbia, 6 August 2019.
- 73.
NML Capital, Ltd. v. Banco Central de la República Argentina, no. 10-1487- cv(L), — F.3d —, 2011 WL 2611269, p. 194 (citing Patrikis 1982, pp. 275–277).
- 74.
Under the TRIA. the separate agency or instrumentality do not have to be a named party to the litigation resulting in the judgment.
- 75.
It must be finally noted that the recently enacted JASTA does not contain any provision limiting or modifying immunity from executive jurisdiction, thus not relating to FCBs either.
- 76.
Peterson v. Islamic Republic of Iran, 515 F.Supp.2d 25, 60 (United States District Court for the District of Columbia 2007.
- 77.
In 1984, the United States designated Iran as a ‘State sponsor of terrorism’, a designation still in force.
- 78.
Deborah Peterson, et al. v. Islamic Republic of Iran, et al., case no. 10-cv-4518 (S.D.N.Y.).
- 79.
In 2008, the plaintiffs first learned of the interests of Bank Markazi in a Citibank bank account in New York belonging to Clearstream Banking, S.A. (a Luxembourg-based bank) which held the account on behalf of Bank Markazi. In 2008, another account was opened in the interest of the Iranian central bank with Italian bank Banca UBAE S.p.A to place the interest payments from the Clearstream account.
- 80.
The plaintiffs allege that those bond proceeds were processed by and through a global chain of banks: as part of its foreign currency reserves, Bank Markazi held $1.75 billion in security entitlements in foreign government and supranational bonds at Banca UBAE S.p.A. (an Italian bank) which, in turn, held corresponding security entitlements in an account with another intermediary in Luxembourg, Clearstream.
Clearstream then held corresponding security entitlements in an omnibus account at Citibank, N.A., in New York.
- 81.
According to the US District Court for the Southern District of New York: ‘E.O. 13599 had the effect of turning any restrained assets owned by the Iranian Government (or any agency or instrumentality thereof) into ‘Blocked Assets’. As Bank Markazi is the Central Bank of Iran, any of its assets located in the United States as of 5 February 2012, became ‘Blocked Assets’ pursuant to E.O. 13599; see Deborah D. Peterson et al. v. Bank Markazi a.k.a. Central Bank of Iran et al., US District Court for the Southern District of New York, opinion and order dated 28 February 2013, p. 12.
- 82.
President Obama signed the 2012 Act into law on 10 August 2012. It was then codified after enactment as 22 U.S.C. §8772.
- 83.
Emphasis added.
- 84.
22 USC §8772, lett. a).
- 85.
22 USC §8772, lett. b).
- 86.
Peterson, et al. v. Islamic Republic of Iran, Bank Markazi a.k.a. Central Bank of Iran, Banca UBAE, Citibank, and Clearstream Banking, No. 10 Civ. 4518 (S.D.N.Y., July 9, 2013); In July 2013, the district court issued an order directing turnover of the blocked assets and enjoining the parties from initiating a claim to the assets in another jurisdiction; see Peterson v. Islamic Republic of Iran, No. 10 Civ. 4518 (S.D.N.Y. July 9, 2013).
- 87.
Peterson v. Islamic Republic of Iran, 758 F.3d 185, 193 (2d Cir. 2014).
- 88.
US Supreme Court, Bank Markazi, a.k.a. the Central Bank of Iran, Petitioner v. Deborah Peterson, et al, 578 U.S. (2016); Docket no. 14-770. The ruling resulted in an order for the turnover of nearly $2 billion; in fact, the US District Court authorized the payment of the blocked assets to the judgment creditors and closed the proceedings: see Deborah D. Peterson et al. v. Bank Markazi a.k.a. Central Bank of Iran et al., US District Court for the Southern District of New York, order authorizing distribution of funds dated 6 June 2016.
- 89.
The Treaty of Amity, Economic Relations and Consular Rights between the United States and Iran was signed in Tehran on 15 August 1955 and entered into force on 16 June 1957.
- 90.
Article XXI (2) of the Treaty of Amity provides: ‘Any dispute between the High Contracting Parties as to the interpretation or application of the present Treaty, not satisfactorily adjusted by diplomacy, shall be submitted to the International Court of Justice, unless the High Contracting Parties agree to settlement by some other pacific means’. In particular, Iran contested the alleged violation of: Articles III. 1 (recognition of the legal status of Iranian companies and enterprises), III.2 (fair and impartial access to jurisdiction), IV.1 (fair and impartial treatment of its own citizens and businesses), IV.2 (protection and security guaranteed to its own citizens and businesses), V.1 (right to acquire and dispose of goods and property), VII.1 (prohibition of restrictions on payments or transfer of funds) and Art. X.1 (freedom of trade and navigation).
- 91.
At the outset, the United States raised three jurisdictional objections, namely (i) the Iran claims fell outside the scope of the Treaty of Amity and the jurisdiction of the Court as the Executive Order 13599 was covered by the ‘national security exception’ of the Treaty of Amity; (ii) the Treaty of Amity did not give immunity to the States Parties or to any of their State entities; and (iii) the Treaty of Amity did not apply to Bank Markazi, insofar as it was not a ‘company’ under Articles III, IV and V thereof since, as the Central Bank of Iran, it carried out exclusively sovereign functions and was not engaged in activities of a commercial nature.
- 92.
Emphasis added.
- 93.
ICJ, Application instituting proceedings, filed in the Registry of the Court on 14 June 2016, Certain Iranian Assets (Islamic Republic of Iran v. United States of America), p. 30.
- 94.
Ibid., p. 26.
- 95.
Emphasis added.
- 96.
ICJ, Application instituting proceedings, filed in the Registry of the Court on 14 June 2016, Certain Iranian Assets (Islamic Republic of Iran v. United States of America), p. 33. Iran also affirmed that the jurisdiction conferred on the Court by the Treaty included jurisdiction to determine and apply the immunities at issue to the full extent necessary (i.e. under customary international law as well) in order to decide whether the provisions invoked by the plaintiff had been breached by the United States. According to Iran, since the Court had jurisdiction to rule on the alleged breach of any of the Treaty’s provisions, it therefore also had jurisdiction to apply the law of immunities in the context of Article IV.2.
- 97.
ICJ, Certain Iranian Assets (Islamic Republic of Iran v. United States of America), judgment on Preliminary Objections, 13 February 2019, para. 57. In particular, with reference to Article IV.2, the Court held that that ‘Iran’s proposed interpretation of the phrase referring to the ‘require[ments of] international law’ … is not consistent with the object and purpose of the Treaty of Amity’, insofar as the Parties, as stated in the preamble thereof, intended to encourage mutually beneficial trade and investments and closer economic intercourse generally between their peoples; nor the same title of the Treaty of Amity did suggest that sovereign immunities fell within the object and purpose of the instrument concerned.
- 98.
ICJ, Certain Iranian Assets (Islamic Republic of Iran v. United States of America), judgment on Preliminary Objections, 13 February 2019, para. 57.
- 99.
The Court examined as well Article XI(4), Article III(2), Article IV(1) and Article X(1).
- 100.
Chachko (2019).
- 101.
ICJ, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), judgment, ICJ Reports 2012, para. 88.
- 102.
The US unilateral waive of the immunity of Iran and its central bank as well as the Supreme Court decision in Peterson had been also strongly criticized as inconsistent with international law by third States and International Organizations: e.g. the Coordinating Bureau of the Non-Aligned Movement objected ‘to US defiance to international law through the unilateral waiving of the sovereign immunity of States and their institutions in total contravention of the international and treaty obligations of the United States and under a spurious legal ground that the international community does not recognize’. See Communique by the Coordinating Bureau of the Non-Aligned Movement in Rejection of Unilateral Actions by the United States in Contravention of International Law, in Particular the Principle of State Immunity (5 May 2016).
- 103.
Subject, of course, to the possibility of waiver under Articles 18 and 19, subparagraphs (a) and (b).
- 104.
This definition was first used by Perassi (1957), p. 29.
- 105.
Corte di Cassazione, Joined Sections, judgment no. 5044/2004.
- 106.
See Iovane (2005), p. 165.
- 107.
Italy implemented the decision by establishing, in Article 3 of the Law no. 5 of 2013, the obligation for the Italian judge to detect in any state and degree of the process the lack of jurisdiction and to allow the revocation of the civil judgments already final.
- 108.
Trib. Firenze, order of 21 January 2014, case no. 1300/2012, commented inter alia by Palombino (2014), p. 501.
- 109.
- 110.
The Court’s decision is very articulated and it is not possible here to dwell in detail on all the issues addressed; in any case the approach therein has traditionally been followed by the Constitutional Court and, before the judgment in comment, reiterated by the Court, albeit in an obiter dictum, in the judgment no. 73 of 22 March 2001 where it affirmed that ‘the openness orientation of the Italian legal system towards both the generally recognized international law rules and the conventional international norms meets the necessary limits to guarantee their identity and, therefore, above all the limits deriving by the Constitution’: therefore, the fundamental principles of the constitutional order and the inalienable rights of the person constitute a limit to the entry of the generally recognized international norms to which the Italian legal system conforms by virtue of the Art. 10 of the Constitution.
- 111.
Emphasis added.
- 112.
ICJ, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), judgment, ICJ Reports 2012, para. 104.
- 113.
On 12 October 2012, the United States District Court for the Southern District of New York entered judgment no. 2624/2012 (Havlish, et al. v. bin Laden, et al.) on behalf of the victims of the 9/11 terrorist attacks and against the Islamic Republic of Iran, Bank Markazi and other Iran’s agencies and instrumentalities, awarding damages to the victims and their families.
- 114.
Court of Appeals of Rome, order dated 14 June 2018. The Court issued this decision despite the lack of a specific provision such as those provided for intra-EU judgments by Article 47 of the Council Regulation (EC) no. 44/2001 of 22 December 2000 (no longer in force) and by Art. 40 of Regulation (EU) no. 1215/2012; see Court of Appeals of Rome, judgment of 15.7.2003; Court of Appeals of Milan, judgment of 13.03.1998; Court of Appeals of Trieste, judgment of 20.06.93, cited in the order.
- 115.
On 28 June 2018, Bank Markazi filed a petition in the Court of Appeals seeking rehearing of the decision and on 8 October 2018, a rehearing panel of the same Court entered an order that vacated the asset freeze: actually, the Court did not rule on the question of immunity of Bank Markazi but found, from an exclusive point of view of domestic law, the defect of the requirement of periculum in mora, thus revoking the seizure order. On January 3, 2019, the Havlish plaintiffs filed a second request for an asset freeze before the Court of Appeals of Rome claiming that Bank Markazi had already made several attempts to shield its funds at UBAE bank, among which moving the funds out of its account at UBAE to unknown destinations outside the jurisdiction of Italian courts. Bank Markazi and Iran solicited the aid of the Italian government by asking it to intervene on its behalf in the proceedings: with a note dated March 28, 2019, the US judgment creditors formally requested that the Italian government reject the Iranian government’s request to intervene in its support in the Italian court proceedings, explicitly recalling the decision of the Italian Constitutional Court no. 238 of 2014 which has affirmed that acts resulting in crimes against humanity cannot benefit from immunity in Italian courts, at the same time requesting assistance in the ongoing judicial proceedings in Italy.
- 116.
Italy had allowed the mortgage registration on ‘Villa Vigoni’, site of an Italian-German cultural center destined for favor cultural exchanges between the two countries. The Court found that ‘the registration of a legal charge on Villa Vigoni constituted a violation by Italy of its obligation to respect the immunity owed to Germany’; see ICJ, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), judgment, ICJ Reports 2012, para. 120.
- 117.
The ICJ stated that a court decision declaring a foreign enforceable ruling constitutes a violation of immunity from jurisdiction and not from enforcement; see ICJ, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), judgment, ICJ Reports 2012, paras. 121–133, in particular para. 128.
- 118.
Broad international practice on sovereign immunity tend to allow pre-judgment attachments with a requirement that the express consent by a foreign State has been provided: see e.g. Sec. 1610(d) of the US FSIA, Sec. 13(2)(a) and 13(3) of the UK SIA, Sec. 10(1) of the Canadian SIA, Art. 23 of the European Convention on State Immunity.
- 119.
In the sense of the exclusion of the latter, see Pustorino (2015), p. 52.
- 120.
ICJ, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), judgment, ICJ Reports 2012, para. 113.
- 121.
Constitutional Court, judgment no. 329 of 1992, para. 3.
- 122.
The same Court expressly acknowledged that the lack of jurisdiction of the Italian judges involved a sacrifice of the fundamental rights of the subjects who have suffered the consequences of the crimes committed by the foreign State and has identified in the opening of a new negotiation the only tool under international law to define the issue; see ICJ, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), judgment, ICJ Reports 2012, para. 102.
- 123.
Constitutional Court, judgment no. 329 of 1992, para. 3.
- 124.
With regard to cases of immunity from jurisdiction of States provided by general international law, the Constitutional Court has recognized that, in cases involving foreign States, ‘the fundamental right to judicial protection can be further limited, beyond the limitations provided by Art. 10. However, this limit has to be justified by reasons of public interest potentially prevailing over the principle of Article 24 Constitution, one of the ‘supreme principles’ of the constitutional order (judgment no. 18/1982). Moreover, the provision that establishes the limit has to guarantee a rigorous assessment of the [public] interest in light of the concrete case (judgment no. 329/1992)’; see Constitutional Court, judgment no. 329 of 1992.
- 125.
The principle of protection by equivalent is recognized also by the European Court of Human Rights (ECtHR): the Strasbourg Court, even considering the principle of State immunity a legitimate limit to the individual’s right of access to court protected under Article 6(1) of the European Convention on Human Rights recognized as well the necessity of balancing the granting of immunity with the right of access to courts and the right to an effective remedy. See ECtHR, Al-Adsani v. United Kingdom, Grand Chamber judgment of 21 November 2001, Application no. 35763/97, § 54; see also Cudak v. Lituania, Grand Chamber judgment of 20 March 2010, Application no. 15869/02, § 60; and Sabeh El Leil, v. France, Grand Chamber judgment of 29 June 2011, Application no. 34869/05, § 52.
- 126.
The same reasoning developed by the Constitutional Court in judgment no. 238/2014 has been criticized because it did not adopt of an ‘effective’ and ‘comprehensive’ balancing model insofar as grounded on the sole gravity of the crimes object of the proceedings, which was considered per se as a circumstance not allowing exceptions to the right to judicial protection: no emphasis was given to the possibility that that protection could take place by equivalent through alternative means of satisfaction to judicial action; see De Sena (2014).
- 127.
If this approach may be perhaps formally corrected as the fumus boni iuris required by the Italian law to issue a seizure order should be found in the probability of recognition of the foreign judgment (probability in fact existing in the light of the principles expressed by the Constitutional Court), however it would lead to the substantial paradox for which the preventive seizure could be granted but, after the recognition of the foreign judgment, there could be no execution.
- 128.
Corte di Cassazione, Joint Sections, judgment no. 21946 of 28 October 2015.
- 129.
See e.g. Court of Appeals of Milan, judgment no. 1278 of 27 January 2015.
- 130.
‘due to the principles of jurisdictional immunity of foreign States, established by customary international law (to which Article 10 of the Constitution refers), there is no jurisdiction of the Italian judge with regard to the enforcement or preventive action on assets belonging to said [foreign] States or to their public bodies, in the case of goods intended for the exercise of their sovereign functions or, in any case, of their public purposes’ see Corte di Cassazione, III Section, judgment no. 14885 of 25 March 2018; see also Corte di Cassazione, Joint Sections, judgment no. 173 of 12 January 1996; according to the Constitutional Court, judgment no. 329/1992 and Corte di Cassazione, Joint Sections, judgment no. 5888/1997 it is not the foreign State that is subjectively immune from the executive jurisdiction but its assets cannot be subject to execution if they are destined for the fulfillment of its public functions.
- 131.
Emphasis added.
- 132.
Corte di Cassazione, III Section, judgment no. 21995 of 25 June 2019.
- 133.
See amplius Wuerth (2019).
- 134.
E.g. in the Commentaire des Articles of the Proposition de Loi modifiant le Code judiciaire, the Proposers expressly provided that ‘La présente proposition vise à renforcer la compétitivité de la Belgique’, p. 3. Also the US Federal Reserve Bank of New York noted that ‘an inadequate or uncertain immunity law might prompt central banks to move their reserves to more hospitable jurisdictions’, in Brief of Amicus Curiae the Federal Reserve Bank of New York, NML Capital, 2010 WL. See also Laborias (2016); see amplius Waibel (2011), pp. 19–20.
- 135.
E.g. see the judgments given by the European Court of Human Rights on 17 July 2012 in the case Wallishauser v. Austria (application no. 156 / 04) and in the case of Oleynikov v. Russia, 14 March 2013 (application no. 36703/04). See also Luzzato and Queirolo (2006), p. 219. On the contrary, according to Brown and O’Keefe (2013), p. 306, it is premature to affirm that Article 18 reflects customary international law.
- 136.
ICJ, Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), judgment, ICJ Reports 2012, para. 117; in support of its claim before the Court, Germany provided for by Article 19 of the UNCSI considering it as a codification, in relation to the issue of immunity from enforcement, of the existing rules under general international law, and therefore binding regardless of the entry into force of the UNCSI; see Case concerning jurisdictional immunities of the States, Memorial of the Federal Republic of Germany, 12 June 2009, para. 104 reading that ‘The UN Convention on Jurisdictional Immunities of States and Their Property has recently codified the rules existing under general international law’.
- 137.
See e.g. Leasing West v. Democratic Republic of Algeria, Austria, Supreme Court, 30 April 1986, Case No. 3 Ob 38/86, 116 ILR 526, 529; I GmbH v. A, Austria, Supreme Court, 25 August 1998, Case No. 1 Ob 100/98g; in Alcom v. Republic of Colombia (United Kingdom, House of Lords, 12 April 1984, [1984] 2 All ER 6, 74 ILR 170, 187), the House of Lords held that a general mixed bank account of an embassy was immune from enforcement measures and the funds could not be dissected into commercial and sovereign purposes.
- 138.
A clear concern about a possible lack of compatibility between the provisions of the JASTA and the international norms was expressed in his veto message (which was overcome by the vote of the Congress) by the same US President who noted that ‘JASTA would upset longstanding international principles regarding sovereign immunity, putting in place rules that, if applied globally, could have serious implications for U.S. national interests’; see Veto Message from the President S.2040, available at https://www.whitehouse.gov/. Accessed 15 April 2021. On the contrary, see Dodge (2016).
- 139.
Cîrlig and Pawlak (2016). On May 5, 2016, 120 nations of the Non-Aligned Movement addressed a letter to the UN Secretary General rejecting the unilateral actions of the US as violations of the principle of State immunity. Many international actors have censored the JASTA as well: e.g. the EU has expressly claimed that it ‘conflict[s] with fundamental principles of international law and in particular the principle of State sovereign immunity’; see Statement of the EU Delegation to the United States of 9 October 2016.
- 140.
See e.g. House of Lords, 14.6.2006, Jones v. Ministry of Interior of the Kingdom of Saudi Arabia and others, in ILM, 2006, 992.
- 141.
E.g. the Dutch Hoge Raad (Supreme Court) has applied the principles enshrined in Article 19 even though the Netherlands has not signed the UNCSI; see Supreme Court of the Netherlands, Netherlands v. Servaas, 14 October 2016, cited in Webb, United Nations Convention on Jurisdictional Immunities of States and Their Property, Introductory note, in United Nations Audiovisual Library of International Law (2019).
- 142.
Webb, United Nations Convention on Jurisdictional Immunities of States and Their Property, Introductory note, in United Nations Audiovisual Library of International Law (2019).
References
Brown C, O’Keefe R (2013) Article 18. In: O’Keefe R, Tams C (eds) The United Nations Convention on jurisdictional immunities of states and their property. A commentary. OUP, New York, pp 293–307
Cataldi G (2015) La Corte costituzionale e il ricorso ai ‘contro-limiti’ nel rapporto tra consuetudini internazionali e diritti fondamentali: ‘oportet ut scandala eveniant’, Diritti Umani e Diritto Internazionale, pp 41–50
Chachko E (2019) Certain Iranian assets: the International Court of Justice splits the difference between the United States and Iran. In: Lawfare.com
Cîrlig CC, Pawlak P (2016) Justice against sponsors of terrorism JASTA and its international impact, EPRS | European Parliamentary Research Service
De Sena P (2014) Spunti di riflessioni sulla sentenza 238/2014 della Corte costituzionale. In: SIDI Blog
Dickinson A et al (2004) State immunity: selected materials and commentary. OUP, New York
Dodge WS (2016) Does JASTA violate international law?. Just Security
Fox H, Webb P (2013) The law of state immunity, 3rd edn. OUP, New York
Gaukrodger D (2010) Foreign state immunity and foreign government controlled investors, OECD Working Papers on International Investment 2010/02
Giuffrida R (2015) L’immunità dei beni degli Stati dalla giurisdizione esecutava e cautelare nel diritto internazionale ed italiano. In: Ordine Internazionale e Diritti Umani, pp 273–287
Iovane M (2005) The Ferrini judgment of the Italian Supreme Court: opening up domestic courts to claims of reparation for victims of serious violations of fundamental human rights. Ital Yearb Int Law:165–193
Laborias AR (2016) Immunity of foreign central banks: a comparison between the legislations in Argentina and China. Ambito Juridico
Luzzato R, Queirolo I (2006) Sovranità territoriale, ‘Jurisdiction’ e regole di immunità. In: Carbone SM, Luzzatto R, Santa Maria A (eds) Istituzioni di Diritto Internazionale. Giappichelli, Milano, pp 203–242
Montero FJ, Castro P (2019) Waivers of sovereign immunities in enforcement proceedings and the 1958 NY Convention. In: Gómez KF, López Rodríguez AM (eds) 60 years of the New York Convention key issues and future challenges. Alphen aan den Rijn, pp 369–397
Ostrander J (2004) The last bastion of sovereign immunity: a comparative look at immunity from execution of judgments. Berkeley J Int Law 22:541–582
Palombino F (2014) Quali limiti alla regola sull’immunità degli Stati? La parola alla Consulta, in Rivista di diritto internazionale, pp 501–561
Patrikis ET (1982) Foreign central bank property: immunity from attachment in the United States. Univ Ill Law Rev:265–288
Perassi T (1957) Lezioni di diritto internazionale, Padova
Pustorino P (2015) La sentenza n. 238 del 2014 della Corte costituzionale: limiti e prospettive nell’ottica della giurisprudenza italiana, Diritti Umani e Diritto Internazionale, pp 51–60
Sciso E (2015) La regola sulla immunità giurisdizionale dello Stato davanti alla Corte costituzionale, Diritti Umani e Diritto Internazionale, pp 61–84
Sportes C, Simon S (2016) Immunity from enforcement: when national law supplements customary international law. La Revue, Squire Patton Boggs
Stoll PT (2012) State immunity. In: Wolfrum R (ed) Max Planck encyclopedia of public international law. OUP, Oxford
Waibel M (2011) Sovereign defaults before international courts and tribunals. CUP, Cambridge
Wang G (2015) International investment law: a Chinese perspective. Routledge, London
Wautelet P (2008) Immunity of Foreign Central Banks Assets in Belgium. In: Conflictoflaws.net
Wiesinger E (2016) State immunity from enforcement measures. University of Vienna
Wood M (2013) Immunity from jurisdiction and immunity from measures of constraint. In: O’Keefe R, Tams CJ (eds) The United Nations Convention on jurisdictional immunities of states and their property. A commentary. OUP, New York, pp 13–18
Wuerth IB (2019) Immunity from execution of central bank assets. In: Ruys T, Angelet N, Ferro L (eds) The Cambridge handbook of immunities and international law. CUP, Cambridge, pp 266–284
Yang X (2012) State immunity in international law. CUP, Cambridge
Zhu L (2007) State immunity from measures of constraints for the property of foreign central banks: the Chinese perspective. Chin J Int Law 6:67–81
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2022 The Author(s), under exclusive license to Springer Nature Switzerland AG
About this chapter
Cite this chapter
Salvati, P. (2022). Foreign Central Banks and Immunity from Execution: Too Sovereign to Be Attached?. In: Bismuth, R., Rusinova, V., Starzhenetskiy, V., Ulfstein, G. (eds) Sovereign Immunity Under Pressure. Springer, Cham. https://doi.org/10.1007/978-3-030-87706-4_16
Download citation
DOI: https://doi.org/10.1007/978-3-030-87706-4_16
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-030-87705-7
Online ISBN: 978-3-030-87706-4
eBook Packages: Law and CriminologyLaw and Criminology (R0)