Evidence and Burden of Proof in Foreign Sovereign Immunity Litigation: A Guide for International Lawyers and Government Counsel (5)


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


©2015 Peter Fritz Walter. Some rights reserved.
Creative Commons Attribution 4.0 International License.


Publication Table of Contents


Contents

Introduction
Application of British Case Law
The Burden of Proof


Introduction

In 1979, the Singapore parliament adopted the State Immunity Act 1979 which closely follows the British enactment.

— Singapore, Government Gazette, Acts Supplement No. 20, October 5, 1979, UN-MAT., pp. 28 ff., Gamal Moursi Badr, State Immunity (1984), Appendix IV.

In the parliamentary debates, the Singaporean Minister for Law, Science and Technology, M.E.W. Barker, stated: ‘This Bill is based on the United Kingdom State Immunity Act 1978, but has been modified to suit our needs and circumstances.’ (Hansard, Parliamentary Debates, 15th of May 1979, Singapore, Official Report, Vol. 39 (1979/80), col. 409).

In reality, the modifications were not essential, and the STIA 1979 is almost section by section identical with its UK model. Of course, certain provisions in the British Act that refer to the European Convention on State Immunity were not appropriate for Singapore.

— 1972 ETS 74, UN-MAT. 156 ff. (English), Rapports Explicatifs, Conseil de l’Europe, Strasbourg, 1972, 52 ff. (French). Mr. Barker stated: ‘As there are certain provisions in the United Kingdom Act which are not appropriate to Singapore, particularly those concerning the European Convention on State Immunity, it is preferable to enact our own legislation so as to preclude the application of the United Kingdom Act to Singapore.’ (Parl. Deb. id).


Application of British Case Law

While Singapore drafted their own enactment on foreign sovereign immunity, the application of British case law for interpreting the STIA 1979 is not excluded. For one thing, international law would apply in Singapore even without recurring to British legislation, for the other, such recurrence is expressly stipulated in §5(1) Civil Law Ordinance (CLO) of Singapore:

§5(1) Civil Law Ordinance

In all questions or issues which arise or which have been decided in the Colony with respect … to mercantile law generally, the law to be administered shall be the same as would be administered in England in the like case, at the corresponding period, if such question or issue had arisen or had to be decided in England, unless in any case other provision is or shall be made by statute. (The Laws of the Colony of Singapore, Edition of 1955, Vol. 1, Chapter 24, 408)

Sovereign immunity litigation is part of mercantile law in the sense of this section and was confirmed to be by the parliamentary debates.

— Hansard, Parliamentary Debates, 15th of May 1979, Singapore, Official Report, Vol. 39 (1979/80), cols. 408–409.

Succinctly speaking, this means that as long as the Singapore statute governs, the British statute recedes; but if there is a lacuna and also for matters of interpretation, the British law still governs, as a consequence of §5(1) CLO.


The Burden of Proof

Immunity from Jurisdiction

The law of evidence in Singapore is governed by the Evidence Ordinance of 1893 (The Laws of the Colony of Singapore, Ed. of 1955, Chapter 4). Evidence rules regarding the burden of proof do not differ from Anglo-American standards; in fact, evidence law in Singapore is historically based upon the Indian Evidence Act of 1872.

— See Sarkar’s Law of Evidence (1981), Preface to the 13th Edition.

The sections relating to the burden of proof are §§102 to 104.

§102 Evidence Ordinance (1893)

(1) Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

§103 Evidence Ordinance (1893)

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

§104 Evidence Ordinance (1893)

The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided that the proof of that fact shall lie on any particular person.

The burden of proof under the Singapore Act, for jurisdictional immunity, is not easily found. A leading case is lacking so far.

But despite these difficulties, we provided arguments already for the British Act that show how we can find the burden of proof not by looking at the schema of rule-and-exception in the statute itself, but by inquiring into the nature of the restrictive immunity doctrine.

These arguments are equally valid for the Singapore enactment, as a successor to the British Act. The STIA 1979 does not substantially differ from the STIA 1978, the immunity rule being found in §3(1) STIA 1979, the exceptions in sections 4 to 13. Thus, from a point of view of statutory construction, we have almost identical models here.

We have seen already for the British Act, that the schema of rule-and-exception or the drafting technique of the statute does not help for finding the burden of proof. However, we have found a valid allocation of the burden of proof by inquiring directly, and inductively, into the restrictive immunity doctrine. This is recognized in international law as a valid method for interpreting national law ‘in the light’ of international law, or with a particular focus upon international law.

As the Singapore statute has more or less overtaken the British Act, with insignificant modifications, our conclusions regarding the burden of proof are valid also for the Singapore enactment on sovereign immunity.

Apart from these considerations, there is another argument; in fact, Singapore, in drafting its immunity statute, has not only ruled about a question of national Singapore law, but also about a question of international law.

It has adopted the restrictive immunity doctrine.

Hence, the principles of international law are equally to consider when interpreting the Singapore enactment. To be sure, we are not facing here the old controversial question if municipal law transforms or incorporates the rules of public international law.

— See, for example, Paul Guggenheim, Traité de droit international public (1967), Tome I, 49 ff., Friedrich Berber, Lehrbuch des Völkerrechts (1969/1977), Vol. I, 107, Fernando R. Tesón, The Relations Between International Law and Municipal Law: The Monism/Dualism Controversy, in: International Law and Municipal Law (1979/1982), 107 ff., Karl Josef Partsch, Die Anwendung des Völkerrechts im innerstaatlichen Recht, Überprüfung der Transformationslehre, BDGVR, Vol. 6, Hersch Lauterpacht, International Law (1977), Vol. I, 158, §58, Ian Brownlie, Principles of Public International Law (1966), 39.

Here, national law has directly stated upon a matter governed by public international law. In such a case, the national lawmaker has theoretically three possibilities:

— it rules the matter in full accord with international law;

— it rules the matter contrary to public international law;

— it rules the matter in accord with international law, but only rules it partially.

As to the second alternative, it is recognized that such a law would be valid within national law, and even on the level of international law; however the state may incur legal responsibility, and could even be sued for damages in front of the International Court of Justice.

Singapore has acted under the third alternative, it has enacted a statute upon a matter governed by international law, but has ruled only partially upon the matter.

Succinctly speaking, the Singapore law maker has omitted to state about the allocation of the burden of proof under the STIA 1979.

In such a case, the silent will of the national legislator to interpret the statute in conformity with international law is to be presumed, except the legislative history, parliamentary debates or other evidence regarding the enactment speak to the contrary.

In the present case, as evidence to the contrary is absent, we can suppose that Singapore wished to enact a statute on foreign sovereign immunity in full accord with international law. Another indication for this will is the positive echo the statute received during the parliamentary debates, where the adoption of the restrictive immunity doctrine for Singapore was expressly welcomed.

— See, for example, Gamal Moursi Badr, State Immunity (1961), 61.

We can thus conclude that in matters of jurisdictional immunity, the burden of proof is upon the foreign state in support of its immunity claim, which can be met by making a prima facie case on two elements, that is, that it is a foreign state, and that the activity in question was one of public, governmental character.

Immunity from Execution

As to immunity from execution, the application of British jurisprudence for interpreting the Singapore Act shall be demonstrated with an example, the decision of the House of Lords in Alcom Ltd. v. Republic of Colombia, [1984] 2 Lloyd’s Rep. 24 (H.L.), 23 ILM 719 (1984), that we already discussed earlier on.

We have seen that in this precedent, the House of Lords examined the relationship between sections 13(4) and 13(5) STIA 1978 and derived from it conclusions for the allocation of the burden of proof.

The respective provisions in the Singapore Act, §§14(4) and 14(5) are literally identical with those of the British Act.

As a result, the burden of proof considerations of the House of Lords in Alcom must be equally valid for the STIA 1979.

The burden of proof under these sections is upon the plaintiff. The foreign state can limit itself to providing the Ambassadorial certificate required by §14(5) STIA 1979. This certificate has the effect of a presumption of immunity that the plaintiff has to overcome, if he is to win (‘unless the contrary is proved’).


©2015 Peter Fritz Walter. Some rights reserved.
Creative Commons Attribution 4.0 International License.

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