Evidence and Burden of Proof in Foreign Sovereign Immunity Litigation: A Guide for International Lawyers and Government Counsel (1)

Published in 2014 with Createspace / Amazon by Peter Fritz Walter.

Publication Table of Contents

Editor’s Note

The present 28 Year Platinum Edition of this seminal work by the author, subject to his doctoral thesis at the University of Geneva in December 1987, includes the original article in German language, published in 30 Recht der Internationalen Wirtschaft (RIW/AWD) in 1984 (Annex 1), and the original theses from his doctoral thesis in French language, submitted to the Law Faculty of the University of Geneva on the 13th of December, 1987.

The translation, adaptation and update of the original French thesis has been effected by the author in 2014.


I wish to express my gratitude first of all to Professor Dr. Gerhard Lüke from Saarland University Law Faculty for our friendship and for all what I learnt from him in matters of civil procedure. Without this basic kwowledge of the law of civil procedure, I would have been unable to master my doctoral thesis in Geneva later on.

Further, I wish to express special thanks to Dr. Dr. Dr. h.c. mult. Georg Ress, Judge Emeritus of the European Court of Justice, who gave me an uncanny and difficult assignment within my Master’s Program (LL.M) in European and International Law at the Europa-Institut, which was later the subject of my doctoral thesis in international law at the University of Geneva Faculty of Law.

I owe gratitude also to Professor Alfred E. von Overbeck, at the time the Director of the Swiss Institute of Comparative Law in Lausanne-Dorigny, for a scholarship and an office in the Institute, which allowed me to write my doctoral thesis close to where I was living, as I could not have afforded an apartment in Geneva.

I am equally indebted to the German Academic Exchange Service (DAAD) in Frankfurt, Germany, to have facilitated a scholarship from the University of Geneva, which allowed me to continue my doctoral studies after the scholarship from the Swiss Institute of Comparative Law expired.

Last not least, special thanks also to the Fulbright Commission for a Travel Grant to the United States, for a Masters Program at University of Georgia Law School and a work term at the Chair of International Law, with Professor Louis B. Sohn (1914–2006), back in 1985.

The work with Professor Sohn on the United Nations Convention against Torture was extremely interesting and rewarding. Professor Sohn was a wonderful man with whom I could maintain a real friendship, as both in matters of music and law, and even philosophy we had so much to share! He, like me, had been a concert pianist before he devoted his life to the law, and he, like me, was a great admirer of Chinese philosophy and the I Ching, especially the teaching of Confucius. I’ll never forget our many exchanges about law, philosophy, and human rights that truly enriched me.

Professor Sohn was one of the greatest human rights lawyers I met in my life, and he was brilliant in his field, also in the classroom, and the students just loved him!

Warm thanks also to my thesis director, Professor Christian Dominicé, and Lady Hazel Fox, CMG, QC, at the time Direktor of the British Institute of International and Comparative Law in London, for her invaluable assistance during the Soutenance of my thesis at the Law Faculty of the University of Geneva, on the 13th of December, 1987.

Further, I wish to thank Professor Dr. Dr. h.c. mult. Walther Habscheid for his advice and assistance during the Soutenance of my thesis.

I would like to thank Thai Ambassador Dr. Sompong Sucharitkul, at the time the ‘Special Rapporteur’ for a Draft Convention on Sovereign Immunity within the International Law Commission for our interesting exchanges during one of the meetings of the ILC. Special thanks also to Sir Ian Sinclair, QC, KCMG (1926–2013), whom I met during that meeting and who, contrary to Dr. Sucharitkul, found that I was on ‘the right track’ with my doctoral thesis.

Heartfelt thanks also to Dr. Jean-Flavien Lalive (1915–2012) of Lalive Lawyers, Geneva, as well as Monroe Leigh, Esq. (1919–2001) from Steptoe & Johnson, Washington, D.C.

Dr. Lalive was not only an excellent international lawyer, but also a great soul. He encouraged me to hold on and continue my thesis work during a psychological crisis I went through because of the immense difficulties of my doctoral thesis, and he also gave me work in his law firm’s library during a time of financial stress.

I met Mr. Monroe Leigh in 1985 in Washington D.C., in his office in Steptoe & Johnson, International Law Firm, and I am very thankful for our discussion about my doctoral work in Geneva. Mr. Leigh considered me for employment in the firm which honored me, yet I had to decline his offer because of my need to finalize the thesis in Geneva, which I finally mastered successfully two years later, in December 1987.

Last not least, I would like to thank the Dean of the University of Geneva to have facilitated me a grant of 5000 Swiss Francs for the printing of my doctoral thesis. Unfortunately, the cheapest offer I got from a printing house was 13.000 Swiss Francs, and as I could not pay the difference because of lacking income, the thesis was never published until I self-published it in English translation in 2014, with Createspace / Amazon.


Restrictive Immunity and Burden of Proof

Still about two hundred years ago, governments rarely entered the international marketplace for purchasing goods; they manufactured all the goods and materials needed for their governmental purposes.

However, this situation changed during the 19th century, with the emergence of world trade. Accordingly, international law has widely changed from about the beginning of the 19th century.

Contrary to the opinion of many skeptical international law experts, international law has stood trial as to its ability to flexibly adapt to paradigm changes in socioeconomic conditions as well as to the psychology of nations’ sometimes overly sensitive behavior on the international stage.

Are we dealing with a law of sovereigns, or with a law of nations? How did sovereigns behave in the past, and how do our modern nation-states behave?

When we look at these questions, we can observe a tremendous shift in international jurisdiction from about the last decade of the nineteenth century. This paradigm shift was was being subtly prepared by incidental precedents such as The Schooner Exchange v. M’Faddon (1812), 11 U.S. [7 Cranch] 116, 135 (1812) and culminated in a thorough reform of international procedural law.

Hence, we can say that in the domain of international trade, and particularly in case of commercial contracts between private traders and foreign states, a restriction of sovereignty has taken place over the course of the last hundred years.

Before the nineteenth century, sovereigns, or rulers, were considered immune from any jurisdiction other than their own. This was historically and politically a sound concept until the moment when, from about the middle of the 19th century, the young nation states engaged in the growing international market and behaved, as such, like traders.

The moment nation states entered the international marketplace for buying and selling goods, a novelty event on the timeline of human history was set.

International law was not prepared to deal with that novelty at first, and could not protect private traders who lost large amounts of money because they had contracted with a foreign state; what happened quite regularly in such cases was that the foreign government would invoke foreign sovereign immunity to escape its liability under the contract.

A consequence of the immunity claim was namely that the forum state had to deny jurisdiction over the foreign state, and dismiss the claim because of a ‘procedural handicap.’ When a claim is dismissed on procedural grounds, the court will not enter the substance matter of the case, and thus not rule over the transaction at the basis of the claim. The lawyer would in such a case reason their client that ‘the case cannot be won because of lacking jurisdiction.’

Thus what the new situation created was rampant injustice, and heavy financial losses of large trading companies around the world, as a result of having contracted with a foreign state, or an agency or instrumentality of a foreign state.

One can figure that in the beginning courts were reluctant to affirm jurisdiction over foreign states, while they were well aware of the blatant cynicism of the situation. The novelty was overwhelming them and they found international law had no instrument to deal with the problem. And as the topic was a sensitive one because the principle of national sovereignty was in play, judges tended to be very careful. They did not want to step on the feet of some or the other foreign government, and still less did they want to offend their state department or department of foreign affairs.

Some judges however were gaining awareness that a historical break was about to happen and that it was more or less blunt injustice toward the private claimant to grant immunity to a state who voluntarily engaged in the market place and then pleaded sovereign immunity as a defense in an action that did not concern sovereign but commercial activities of that state.

As the business volume of most of those cases is considerable, judges soon found a way to avoid such injustice. They argued that it was not the nature of the person involved, speak the private individual or sovereign ruler or state, that was decisive for the outcome of the immunity question, but the nature of the activity in question.

That was after all a clever move to go around the intricate sovereignty question. ‘We are not going to touch the sovereignty of the state. We look what states are doing, and upon their acting they are judged, not upon their nature, their sovereignty, that thus remains untouched.’ The reasoning was brilliant and all efforts of highly qualified international defense lawyers who worked pro immunitatem eventually failed.

At that point, the law was changing forever. Nobody could prevent the tremendous paradigm shift from happening. In fact, international law was going to get a new face! It was almost a revolution, despite the fact that people other than government consultants and international lawyers had (and have) hardly an idea of these affairs, as they are not catchy topics for the international mass media.

The lawyers who worked on the side of the private merchants argued that if the activity in question is by its nature commercial, the state is to be denied immunity and the foreign court has to affirm jurisdiction. If, however, the act or activity is sovereign, immunity must be granted and jurisdiction is to be denied.

That was indeed a handy, catchy rule that was quickly to become a sort of standard for judging sovereign immunity questions before national tribunals. And the change of international law in this respect demonstrates that international law is well flexible and open to change, when change is needed to uphold justice and avoid flagrant injustice!

International conferencing, while it’s today a popular topic in the international media, is not the primary lever for change in matters of international law. International law changes incrementally, and this most of the time through case law. This is exactly what happened with the development of the restrictive immunity concept.

This concept evolved from the end of the 19th century until today, and this process is still ongoing, and all the details and modifications of this concept were worked out by the jurisprudence in agreement with international lawyers, professors and consultants, not, or only to a minor extent, by international agreements.

In this context, one may imagine, even as a lay person, how important it is to know the allocation of the burden of proof in matters of sovereign immunity litigation, for it often is crucial for winning the case. If, for example, the plaintiff bears the full procedural and substantial burden of proving his claim, as it is under general civil law, and common law, then the restrictive immunity theory wouldn’t have much value in practice, as in most cases foreign states could get away with dishonoring commercial agreements, thus causing immense financial losses to the private sector.

Accordingly, the problem who bears the burden of proof in litigations where foreign sovereign immunity is claimed as a procedural defense, is of paramount importance.

The question of the burden of proof is originally not a matter of international law, but of the applicable national substantive law.Needless to add that a case must have the required minimal contacts so that a national tribunal can affirm jurisdiction. Under the United States’ Foreign Sovereign Immunities Act of 1976, this question is stuck together with the question of the burden of proof, as a matter of the legislative wording; however, minimal contacts is quite a different problem.

The interesting question comes up if, as a result of a quite homogenous national range of seven existing immunity laws, international law has been formed in a way so as to encompass today an evidence rule in the field of sovereign immunity? My research resulted in an affirmative conclusion, and time has given me right, as now twenty-four years after my public thesis presentation, we can look back a decade and see that the International Law Commission has codified the matter along the lines of my thesis conclusions, in the United Nations Convention on Jurisdictional Immunities of States and their Property (2004).

— Adopted by the General Assembly of the United Nations on 2 December 2004. Not yet in force. See General Assembly resolution 59/38, annex, Official Records of the General Assembly, Fifty-ninth Session, Supplement No. 49 (A/59/49)

We have seen so far that the transition from the paradigm of ‘absolute’ immunity to the new standard of ‘restrictive’ took more than a hundred years. That seems to be a long time but is compared to the whole of human history a tiny event on the timeline of human evolution. And while as such it may have interest only for specialized lawyers, the signal function of the restriction of national sovereignty cannot be underestimated; a restriction namely connotes something being ‘restrained’ in its scope, power or expression.

We have seen that the once unlimited national sovereignty of nation states now is restrained for the domain of jurisdictional immunities, when the activity in question was of a private, commercial nature.

When such a trend is to be traced, and corroborated by case law, and when the general idea has been accepted that sovereignty is not per se an ‘absolute’ power, but must be restrained when it brings harm to people and to national economies, then we have a situation where, as lawyers say, a ‘precedent was set.’ When a precedent was set, there is a likelihood that a similar constellation or situation will be judged along the same lines because of the similarity of interests or because the values to be protected are of a similar nature.

On the same line of reasoning, the text of the European Convention on State Immunity, 1972, states in its Preamble, that it takes into account ‘the fact that there is in international law a tendency to restrict the cases in which a State may claim immunity before foreign courts’.

The United Nations Convention on Jurisdictional Immunities of States and their Property (2004), contains a similar provision. These clauses are of course very general and have a mere declaratory character, but they are nonetheless important because of their signal function.

We have to keep in mind that only hundred years ago such a clause in an international treaty would have been unthinkable as such a convention wouldn’t have been agreed upon; the majority of states would have thought of such a clause as ‘offending their sovereignty.’

The concept of sovereignty has to be seen historically; the coming up of nation states was a Renaissance endeavor; in the Middle-Ages it would have been unthinkable because of the Church’s absolute power. But when the Church’s power was restrained, the nation states took over the sacrosanct nature of the Church’s absolute domain, and by creating the idea of national sovereignty expressed their claim of almost divine ‘untouchability’, and a set of absolute powers connected with it.

This is actually a good example for showing how cyclic human history is, and now nonlinear. It is cyclic in the sense that the same problems are put on the stage but in the guise of different actors, until humanity has developed enough consciousness to tackle the problem itself, instead of addressing the actor that embodies it. Not the Church was bad but the concept of total dominion over subjects treated as vassals; not the nation states are bad but again the concept of an absolute, and sacrosanct, sovereignty because it does harm to people, and to the smoothness of international trade, and the communication between peoples.

Thus, we can say that humanity has recognized ‘the problem’ twice, first in identifying the human rights abuses committed by the Church, second by realizing that absolute sovereignty, to see only the commercial sector, brings heavy losses to private traders and a possible scenario of ‘total injustice’ into international trade, that cannot reasonably be tolerated. As the problem of national sovereignty is comparatively larger, and does harm also in other ways than commercially, especially when we think that it is the single most dangerous trigger for wars between nation states, resulting in heavy loss of human life, the signal function given from the commercial sector is not to be overlooked and needs to be carefully analyzed by international law scholars and world peace organizations!

After all, the slow but steady erosion of national sovereignty is a fact that cannot be overlooked. Currently, we are in a transition phase until about the year 2020 during which the concept of national sovereignty is going to do even more harm, but also where human consciousness will considerably rise to acknowledge the perilous nature of the very construct of sovereignty. This, then, will open the door to a final modification and further restriction of sovereignty in the sense of restraining it by multilateral agreement, relegating a large part of sovereign national power over to a supranational body called ‘world government’ or otherwise.

In sensible matters of this kind, international diplomacy has developed a careful approach of incremental and careful progress that doesn’t offend the main sandbox players, because so doing would only result in regional, national and international setbacks.


A Complex Matter

The subject matter of the present study is quite of a novelty, for as long as the absolute immunity doctrine was in force, the question who bears the burden of proof in sovereign immunity litigation never came up; it was enough that the foreign state claimed foreign sovereign immunity for having it granted in the forum state.

As sovereign immunity more and more lost its status of an omnia potestas and became a residual concept because of increased state trading during the second half of the 19th century, the upsurge of the restrictive immunity doctrine changed the litigation procedure quite dramatically.

The restrictive immunity doctrine makes the grant of sovereign immunity dependent on the qualification of the activity in question as either private, commercial, or governmental in nature.

At the basis of the legal qualification of the activity, there is a factual problem: which facts determine the outcome of the immunity claim and are therefore crucial for sovereign immunity to be granted, or else denied by the court?

With the establishment of a range of national immunity statutes in the 1970s and 80s, the facts that lead to a denial of immunity were drafted as exceptions to a general rule of immunity.

When we consider now for example a commercial contract between a private company and a foreign state to be at the basis of the claim, we have to ask the question who bears the burden of proof? At this point, two options are possible:

(i) the burden of proof is on the plaintiff for the existence of the contract (proof of a positive fact); or

(ii) the burden of proof is on the foreign state to show that no contract existed (proof of a negative fact).

To put it more generally, does the plaintiff have to prove that the activity in question was of a commercial nature — de iure gestionis — or does the foreign state have to establish that the activity in question had a public or governmental character — de iure imperii — ?

The hope to see this problem clarified by the immunity statutes in the United States (1976), the United Kingdom (1978), Singapore (1979), Pakistan (1981), South Africa (1981), Canada (1982) and Australia (1985) was more or less deceived. Only the American legislator put a revelatory passage in the legal materials, the House Report, to the Foreign Sovereign Immunities Act, 1976, while, admittedly, for Pakistan, the legal history gives clear indications as to the burden of proof, because rule and exception were not reversed, as with all the other jurisdictions.

— H.R. Report No. 94–1487, 15 ILM 1398 (1976). See also Senate Judiciary Committee, Define Jurisdiction of U.S. Courts in Suits Against Foreign States, S.Rep. No. 1310, 94th Cong. 2d Sess. 8 and Hearings on H.R. 11315 before the Subcommittee on Administrative Law and Governmental Relations of the Committee of the Judiciary, House of Representatives, 94th Cong. 2d Sess 24 (1976). 12 Weekly Comp. of Pres.Docs. 1554 (1976).

This passage, while it is ambiguous, set at least a point of departure that could be taken up by American district courts for further elaboration and refinement. American federal jurisprudence has accomplished this difficult task in an exemplary way, which had a direct impact on the formation and the development of international law. This is evidently shown by the simple fact that several volumes of Lauterpacht’s International Law Reports fully quote American case law on the question of sovereign immunity.

This is so much the more important as American judges have a particular feel for the procedural aspects in sovereign immunity litigation.

Evaluating this jurisprudence, I would summarize it by saying that regarding jurisdictional immunities, American judges have an attitude of admitting jurisdiction as a kind of general rule, granting immunity only in exceptional cases. This is obviously in contradiction with the drafting technique of the FSIA (and the other immunity statutes) that poses immunity as the rule and jurisdiction an exception to this rule. But this apparent ambiguity was soon clarified by some leading cases, as for example Alberti v. Empresa Nicaraguense de la Carne (705 F.2d 250 (7th Cir. 1983), 22 ILM 835 (1983) and the Supreme Court’s verdict in Verlinden B.V. v. Central Bank of Nigeria (461 U.S. 480, 103 S.Ct. 1962, 76 L.Ed.2d 81, 51 U.S.L.W. 4567, 22 ILM 647 (1983).

Literature and case law came to the conclusion that the drafting technique used for the immunity statutes had primarily historical reasons. As a result, I had to elaborate the procedural and evidence questions, and especially the question of who bears the burden of proof in these litigations.

For that matter, I could not simply take the rule-and-exception principle as a guideline, because for obvious reasons, as a clash between history and law, this solution was a trap, even though some reputed international law scholars fell into it! The only solution, thus, was to really scrutinize the content of this new restrictive immunity doctrine and see what impact it possibly had on the procedural situation in sovereign immunity litigation and, especially, on the burden of proof?

When we look at immunity from execution, we see a different picture altogether, as the two immunities, jurisdictional and executional, have developed differently historically, and for good reasons. Not surprisingly, then, to see that at the end of this study I will get at a completely different conclusion for litigation regarding the property of foreign states than for the establishment of jurisdiction over foreign states.

The subject of this work was difficult to tackle because of the intricate interplay between national procedural laws, on one hand, and international law, on the other.

To begin with, let me present an example for the interplay between national substantive law and jurisdictional immunity, with respect to the burden of proof. Lets suppose a private merchant claims damages for the repudiation of a contract signed with a foreign state. In such a case, there is today no question that the claimant bears the burden to proof as to the existence of the title, the contract. But who bears the burden of proof for the facts that determine the outcome of the immunity question?

Obviously, it would be easy if the burden here would also be on the claimant. It would simplify the evidence procedure. But unfortunately, things are not that simple. Even though often the two burdens may coincide, this is not always the case, especially not under the Foreign Sovereign Immunities Act of 1976 (FSIA) of the United States.

Theoretically, there are two possibilities to design the burden of proof for substantiating the sovereign immunity claim:

i) the burden is on the plaintiff for the commercial character of the transaction;

ii) the burden is on the foreign state to prove that the nature of the transaction was exceptionally governmental.

Before going into more detail, let me shortly explain the difference between ‘jurisdictional’ and ‘executional’ immunities. It is so basic and common-sense that a lay reader can easily understand it.

When you sue a foreign state in your country — which is then called the ‘forum state’ — and the state invokes sovereign immunity, we are dealing with ‘jurisdictional’ immunity; if however you are a judgment creditor of that state, having obtained a judgment against the foreign state that entitles you to receiving payment or indemnities, and you seek satisfaction, then we are dealing with immunity from execution.

There is still another important variation of the latter constellation, it’s when you have a claim against a foreign state, for example you have done repairs of their embassy in your country, and they don’t pay the bill, and even before having a judgment against them, you may want to secure your interests by seizing, by act of law, one of the embassy’s bank accounts for your satisfaction, then we are equally dealing with ‘executional’ immunities. The statutes here thereafter examined are:

  • The Foreign Sovereign Immunities Act, 1976 (United States)
  • The State Immunity Act, 1978 (United Kingdom)
  • The State Immunity Act, 1979 (Singapore)
  • The State Immunity Ordinance, 1981 (Pakistan)
  • The Foreign States Immunities Act 87, 1981 (South Africa)
  • The State Immunity Act 1982 (Canada)

My examination and comparison of these national statutes on the subject of foreign sovereign immunity revealed common principles of the allocation of the burden of proof for both immunity from jurisdiction and immunity from execution.

With regard to immunity from jurisdiction, the burden of proof is in principle on the foreign state to show some factual basis of its immunity claim by establishing a prima facie case of immunity. This means the state must provide some evidence, not a full proof, for the court to affirm immunity and deny jurisdiction.

When forwarding evidence for establishing the prima face case, the foreign state is not obliged to disprove all immunity exceptions, but only the one(s) the plaintiff relies on. If the plaintiff does not specify the exception(s) he relies on, the foreign state can generally affirm, by affidavit or otherwise, that it falls under the range of the statute, and thus —

— that it is a foreign state within the definition of the statute, and

— that the act in question was of a public, governmental nature.

Once the foreign state has made its case, the evidential burden shifts to the plaintiff to prove the applicability of the exception(s) he relies on. If the plaintiff fails to establish an exception to immunity, immunity has to be granted since the prima facie evidence erects a ‘presumption of immunity.’ If, on the other hand, the foreign state fails to show some prima facie basis of immunity, the ultimate burden or persuasive burden would be with the foreign state and immunity would have to be denied.

This is however only so if the plaintiff, in his pleadings, has given convincing proof for the court to qualify the activity in question as commercial. Since, in this case, no presumption has been erected, and international law does not contain any presumption in favor of immunity or in favor of jurisdiction, the court cannot, without endangering the sovereignty of the foreign state, deny immunity without further enquiry and only on the basis of the burden of proof.

In such a case, the court must namely evaluate the activity in question on the basis of all the evidence the parties have submitted. The court is notably not allowed to refuse immunity only because the foreign state has not entered an appearance or otherwise failed to defend itself. The fact that the restrictive immunity doctrine imposes a certain rule of the burden of proof does not mean that the court is liberated from its obligation to rule sua sponte (ex officio) on the question of immunity.

The statutes slightly differ in the provisions regarding agencies or instrumentalities or separate entities of foreign states. Whereas the American and Canadian statutes assimilate agencies and instrumentalities, for jurisdictional immunity purposes, the British and related statutes discern separate entities from the foreign state and erect a presumption of non-immunity to their effect.

Under the American and Canadian immunity statutes, the burden of proof, without presumption, is the same for agencies or instrumentalities of the foreign state. However, in practice the results of the two different approaches hardly differ as to the burden of proof, for the foreign state must provide some evidence that the agency or instrumentality in question belongs to it, and is not an entity distinct from it.

It is logical that the privilege of sovereign immunity is never granted to legal entities that are distinct from foreign states. Therefore, in practice, the American and Canadian statutes can also be said to contain presumptions of non-immunity with regard to such distinct legal entities.

With regard to immunity from execution, the old, so-called absolute rule of sovereign immunity has not been altered and stayed intact as a true general rule of sovereign immunity, despite the fact that the statutes concede some exceptions to this rule, notably the absence of immunity if the property in question was used, by the foreign state, for (exclusively) commercial purposes.

Since the rule of immunity from execution is not just a residual concept, as is the rule of immunity from jurisdiction, the foreign state does not need to produce prima facie evidence to erect this immunity rule into a true presumption. The burden of proof for overcoming the presumption is with the judgment creditor.

The normal evidence procedure, since the persuasive burden clearly remains with the judgment creditor, is such that the latter begins to present proof by submitting prima facie evidence that the property in question was used, by the foreign state, for commercial purposes.

If the judgment creditor succeeds in establishing this prima facie case, the foreign state, by simply contradicting this proof, can be granted sovereign immunity, since the general rule of immunity from execution is on its side.

Even if the foreign state is not able to rebut the prima facie evidence forwarded by the judgment creditor, the latter must prove, by a preponderance of the evidence, the applicability of an exception to immunity from execution. This is the consequence of ordinary rules of statute construction which put the burden of proof on the one who struggles against a general rule contained in a statute.

This burden is not met by prima facie evidence, but only by plain proof overcoming the presumption established under the general rule.

Thus, the immunity risk in the field of immunity from execution is clearly on the judgment creditor. In other words, the judgment creditor bears the legal or persuasive burden of proof. In any case of doubt (non liquet), the court must grant immunity. In other words, in matters of immunity from execution, the rule is in dubio pro immunitatem.

As to the methodology, this study had to scrutinize national procedural rules and laws; hence it’s a borderline topic. The ultimate objective was to show that in matters of foreign sovereign immunity litigation, a legal standard for evidence production and for the burden of proof can be shown to exist in international law.

There were thus three fundamental problems to tackle: the first was to choose the jurisdictions to examine; the solution was to choose only common law jurisdictions because they had enacted immunity statutes, while all other jurisdictions only had some case law, and some not even that.

This meant to situate the whole thesis within the Anglo-American legal system, which was just another challenge as I am a continental (German) lawyer and presented the thesis to the law faculty of a continental university (Geneva), and in French language. This led to the abstruse result that when the time of my public thesis discussion had come, after four years of assiduous work on this study, my thesis supervisor in Geneva told me that he was unable to understand my work and that a common law specialist had to be invited for the jury, Lady Hazel Fox, Q.C, at the time Director of the British Institute of International Law and Comparative Law in London, England.

The thesis presentation consisted of two hours of a question-answer game where I could only exchange with Lady Fox because all Swiss professors and lawyers understood very little of the subject. As a matter of fact, the problems examined in the present study are those of Anglo-American civil procedure, law of evidence and the rules of the burden of proof applied to sovereign immunity litigation.

This is why I dedicated the first chapter to a short elaboration of Anglo-American evidence law, which is usually a terra incognita for a continental lawyer.

The second problem was the method to choose. This is a general problem for every international law study. The method, deductive or inductive, that serves to demonstrate the existence of a certain standard of international law regarding a particular legal question, depends inter alia on the existence or nonexistence of an established rule. Hence, the question is, can we make out any established rule in international law regarding the burden of proof in sovereign immunity litigation? An international law expert will answer this question, on first sight, in the negative! In fact, a general rule of sovereign immunity, be it of an absolute or restrictive immunity as a rule of international law has so far not been established!

— Sompong Sucharitkul, State Immunities (1959), 313, 326 and Jean-Flavien Lalive, L’immunité de juridiction des États et des Organisations Internationales, 84 RCADI (1953-III), 209, at 254 and Gamal Moursi Badr, State Immunity (1984), 135: ‘Moreover, the existence in customary international law of an autonomous rule requiring the grant of immunity to foreign states is not generally recognized. The rules in this area of international law are but the reflection of the rules of the internal laws of the various states, the most restrictive and the least admitting of immunity among them tending to acquire universality through the ripple effect of reciprocal treatment.’

It would thus be contestable to use the deductive approach in order to derive conclusions from the quite nebulous general principles to be found in international law in this area. In fact, the domain of jurisdictional immunities developed in international law in a jumpy, sometimes dramatic and generally inconsistent manner; it was a controversial topic for a long time. Thus, only the inductive approach was suitable here for providing a methodological skeleton for the present work.

By the way, the inductive approach was elaborated in international law, for example, by Georg Schwarzenberger in The Inductive Approach to International Law (1965), William E. Butler in International Law in Comparative Perspective (1980) and Comparative Approaches to International Law, 190 RCADI (1985-I) 9–90, and Bernard Dutoit in Droit comparé et droit international public (1976).

The inductive approach is empirical; it examines (i) international law practice, (ii) national laws that regulate international law matters, and (iii) national case law on those matters.

Only when all three methodological pathways lead to the same result can a researcher say to have found a standard of international law established for the particular question the scrutiny was about. Contrary to Anglo-American case law with its rule of stare decisis, international law is not rigid and inflexible, but in constant flux and development.

Most importantly in this context, Lord Denning states in Trendtex Trading v. Central Bank of Nigeria, [1977] 1 Lloyd’s Rep. 581, at 592: ‘International Law knows no rule of stare decisis.’

This is why finding standards in international law is a never-ending task, and reminds a bit of Heraclitus’ dictum that you can never step into the same river twice.

What I am going to do is to use the empirical, case law based inductive method for getting at certain results, then, as a counter-test, I will apply the deductive method, measuring if the results I have found are in compliance with the limits of international law.

This secures that the result of this study will not be in violation of any of the rules of international law, as for example the principle of sovereignty. For example, in my thesis conclusions regarding jurisdictional immunities, I come to the result that an immunity rule in dubio contra immunitatem can be shown to exist in international law. However, a strict application of this rule could lead to a violation of international law.

Thus, by verifying the content of this immunity rule and by considering the limits imposed upon it by international law, we come to a restriction of the restrictive rule: the rule is not valid for the case that the foreign state does not enter an appearance. Otherwise, the strict conditions under which a default judgment can be rendered against a foreign state would be flagrantly circumvented and undermined.

The third problem was one of terminology, which is something inherent in any scientific work of a certain scope, and this is especially so in comparative law. As I wrote this thesis in French language, I had to find French equivalents to all the terms used in the law of evidence. For doing this, I was luckily benefited by the bilingual system of Québec, Canada, that issues all codifications, including the one on sovereign immunity, in French and English languages. For the clarity of the French text, I had put the Anglicisms in italics.

Abbreviations of law periodicals follow the Anglo-American quotation style elaborated by Harvard University’s Uniform System of Citation (1982).

The next step in this preliminary assessment of our task is to validate or reject any possible guideline for finding the burden of proof, the so-called rule-and-exception principle, as it was used in the drafting technique on the statutes on sovereign immunity. In fact, initially, there is a natural rule of general jurisdiction for every forum state over all its territory. While this is a worldwide consensus among all nation states, this presumption of jurisdiction was on first sight reversed by the immunity statutes.

After a thorough examination of the rule-and-exception principle and thus the drafting technique of the statutes for allocating the burden of proof, I had to abandon this pathway, for it leads to quite arbitrary results. Subsequently I found that the only way to safely attribute the burden of proof in sovereign immunity litigation is by scrutinizing the content of the new restrictive immunity doctrine. More specifically, the following questions had to be tackled in the course of this study:

  • 1/ Is the new restrictive immunity doctrine a new rule of international law, or is it only a limitation of the former absolute rule of sovereign immunity?
  • 2/ Does this new doctrine of restrictive immunity, supposed it exists, only grant sovereign immunity to foreign states when the activity in question was of a public, governmental character, thus restoring as it were the original rule of unlimited jurisdiction of the forum state over all of its territory?
  • 3/ Who bears the burden of proof for the facts that determine the granting or the denial of immunity; who bears the ‘immunity risk’ or the ultimate burden? And this burden, what does it consist of? And what happens in a non liquet situation? Is there any presumption in dubio pro immunitatem or in dubio contra immunitatem?
  • 4/ How is evidence submitted in sovereign immunity litigation? How is prima facie evidence submitted to the court?
  • 5/ Who bears the burden of proof in case an organism of the foreign state, but not the foreign state itself is the defendant in the trial? Is the burden of proof different in such a case?
  • 6/ What about the allocation of the burden of proof in cases that involve not jurisdictional immunities but an execution into property belonging to a foreign state? In other words, are the rules different for immunity from execution? If yes, does that mean that the burden of proof also is different?
  • 7/ Where to find the facts to be proved in litigations that involve foreign sovereign immunity?
  • 8/ Which means of proof are usually submitted in sovereign immunity litigation, or more generally put, which kind of evidence is allowed?

It cannot be avoided that this study goes beyond the strict limits of the topic of foreign sovereign immunity; this is because of the quite natural friction between national law and international law that is particularly elucidative for the topic in question here.

Evidence is part of national procedural law. Sovereign immunity is regulated by public international law. So, how do these two spheres of law play together, interact together, and collaborate or conflict in any particular case of sovereign immunity litigation? In India, for example, sovereign immunity is part of national law, §86 of the Code of Civil Procedure.

Indian jurisprudence has always considered sovereign immunity as being regulated by national law, and thus refuses the application of any rule of international law to it. In India, we thus encounter what has been called the primacy of national law over international law for the domain of sovereign immunity. Such a primacy of national law over international law is admitted in international law if the national law respects the limits imposed by the rules of international law.

— See, for example, Karl Joseph Partsch, Die Anwendung des Völkerrechts im innerstaatlichen Recht. Eine Überprüfung der Transformationslehre (1964). According to Charles Rousseau, Droit International Public (1979), Tome I, 43, the monistic conception of international law that grants priority to national law is countered by positive international law. With regard to §86 of the Indian C.P.C., the dualistic approach could equally be considered (see Rousseau, 38–39); from this perspective a will of the Indian legislator could be presumed that wants to regulate the matter in a different way but nonetheless wants to remain in conformity with international law.

Sovereign immunity is a topic regulated by international law; as a result a national law maker must respect the rules imposed by international law. This means in practice that if the national legislator grants jurisdiction over foreign states for cases where international law prohibits such jurisdiction, it would violate international law.

— See Henkin/Pug/Schachter/Smit, International Law (1980), 117, Habscheid & Schaumann, Die Immunität ausländischer Staaten nach deutschem Zivilprozessrecht (1968), 241, Georg Ress, Les tendances de l’évolution de l’immunité de l’État étranger (1979), 70 and in general, Charles Rousseau, Droit international public (1979), Tome I, 44–46.

With this rather strict consequence in mind, national law makers tend to be careful when drafting laws that sensibly touch matters regulated by international law.

In general, the community of nations is inclined to respect international law. On the other hand, this reflection leads to a mirror effect when interpreting a national legislation or statute. It has been suggested that in cases of doubt about any national law’s conformity with international law, a will of the national law maker to respect international law is to be presumed; this leads to the result that the national law is to be interpreted in conformity with international law.

However, when we apply this general principle to sovereign immunity and the burden of proof, we come to a strange result: national law, and also national evidence law, then, has to be interpreted in conformity with the rules of international law! This is especially the case when the allocation of the burden of proof is difficult to establish because of lacking legal materials or because of ambiguities in the particular case at trial. In such a case, a result can only be found after careful reflection of the rules possibly imposed by international law on the interpretation of national law.

When we consider immunity from jurisdiction and look at the national immunity enactments, we see revolutionary new laws imbedded in an old and established legal landscape. What was to happen? What happened was that the revolution was none.

The courts namely curtailed down the lawmaker’s progressive effort quite a bit and rendered the statutes by far more conservative than they looked on first sight. What the courts, and especially the district courts in the United States did was to tailor that new restrictive immunity to the needs of the litigation practice, while respecting international law.

That is to say, the courts took a rather protective attitude toward the preservation of sovereign immunity in cases where it appeared the lawgiver wished to grant a total license to (unlimited) jurisdiction — provided of course that minimal contacts were established. This is how case law curtailed the peak of that reformist legislative effort, especially in the United States. In fact, American jurisprudence has virtually nullified a literal interpretation of the House Report on the question of the burden of proof in a non liquet situation. I refer to the Supreme Court ruling in Verlinden B.V. vs. Central Bank of Nigeria (461 U.S. 480, 103 S.Ct. 1962, 76 L.Ed.2d 81, 51 U.S.L.W. 4567, 22 ILM 647 (1983).

This was quite a corrective tone set in the land after the joyful law maker seemed to consider sovereign immunity as but a residual concept. Furthermore, American district courts and the Supreme Court have established something like a catalogue of sensible areas that will remain the hard core of sovereignty even in the future, and where the new restrictive immunity doctrine has lost its reformatory spirit.

The question if this catalogue of sensitive political and governmental matters that shall remain untouched by the restrictive immunity doctrine can be considered as a standard of international law is a topic vast and important enough for a further study.

— The question was initially raised by Georg Ress, Les tendances de l’évolution de l’immunité de l’État étranger (1979), and he refers to it also in his later article Entwicklungstendenzen der Immunität ausländischer Staaten, 40 ZaöRV 217 (1980), at 257 ff.