Evidence and Burden of Proof in Foreign Sovereign Immunity Litigation: A Guide for International Lawyers and Government Counsel (8)


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Publication Table of Contents


Contents

Introduction
Construction of the Act
Immunity from Jurisdiction
Immunity from Execution
Conclusion


Introduction

In Canada, foreign sovereign immunity was rather early seen from the specific point of view of the present study, that is, under the procedural angle of who bears the burden of proof for the immunity claim and the facts it is based upon.

For that reason it is of particular interest to tightly follow the legislative development of sovereign immunity in Canada, and the course the jurisprudence has taken in that country since the entering into force of the .

To begin with, in 1968, an immunity claim of the government of Congo, in Venne c. République Démocratique du Congo, [1968] Que.R.P. (2) 6 (C.S.), [1969] 5 D.L.R.3d, 128, 64 ILR 1 (1983), was rejected by the Queen’s Bench of the Province of Quebec. The suit was based upon a contract between the plaintiff, a Canadian architect, and the government of the Congo for the construction of the Congo’s national representation on the EXPO 67 in Montreal. The court, applying the restrictive immunity doctrine, stated:

However, today, instead of starting from the principle that every sovereign State enjoy jurisdictional immunity unless the other party can demonstrate some established exception to this rule, I believe we shall reverse the process. Sovereign immunity is a derogation from the general rule of jurisdiction. Any attorney seeking immunity from jurisdiction on behalf of a sovereign State should be called upon to show, to the Court’s satisfaction, that there is some valid basis for granting such immunity. (64 ILR 1, 11 (1983), Judge Owen).

On first sight, this passage points to the repartition of the burden of proof. However, it was just an obiter dictum in this judgment, which served the judge to explain, in systematic terms, the content of the new rule of restrictive sovereign immunity, while in previous case law in Canada, the absolute doctrine of sovereign immunity was still applied.

— See Dessaules v. Republic of Poland, [1944] 4 D.L.R. 1, [1944] S.C.R. 275, and, in a modified form, in Flota Maritima Browning de Cuba S.A. v. ‘Canadian Conqueror’ et al. and Republic of China, [1962] 34 D.L.R.2d 628, [1962] S.C.R. 598.

In fact, the defendant did not contest that there was a contractual relation with the plaintiff and that this relation was of a commercial nature. Hence, the question of the burden of proof never came up. This could not happen because the Congo invoked absolute sovereign immunity in its quality of a foreign government, thus an immunity as it were ratione personae.

The passage that we quoted above did not state about the burden of proof but just outlined the scope and the content of the new restrictive immunity doctrine, clearly refusing to apply the older absolute immunity concept. This becomes still more obvious when considering another passage in the judgment:

Mere proof that the party seeking immunity is a sovereign State or any agency thereof and the invocation of the doctrine of absolute sovereign immunity is no longer sufficient. (…) The position taken by the defendant was that it was a foreign sovereign State and that in virtue of the doctrine of absolute sovereign immunity our Courts had no jurisdiction. In my opinion this position is untenable today. (64 ILR 1, 11 (1983).

There was no problem of proof as the facts were not contested by the defendant. The qualification of the contractual relationship was a legal problem. Hence, the appeal of the Republic of Congo was rejected by the court because it qualified the contractual relationship as commercial.

Nonetheless, this passage had a certain prejudicial effect upon the judgement of the Supreme Court of Canada, in La République Démocratique du Congo c. Jean Venne, [1971] R.C.S. 997 (official bilingual collection), [1971] 22 D.L.R.2d 669 (English), 64 ILR 24 (1983), which reversed the Q.B. judgment and granted the Congo immunity from jurisdiction. As to the facts, the Supreme Court could not rely upon the record, explaining:

This record discloses nothing more than that the contract here in question was made in pursuance of the desire of a foreign sovereign state to construct a national pavilion at an international exhibition and to be thereby represented at that exhibition which was registered by the Council of the Bureau of International Exhibitions. (R.C.S. 997, 1002, 64 ILR 24, 27).

In the following developments, the majority of the judges took a quite surprising turn from this point of departure and argued as follows:

Considered from the point of view of the architect, it may well be that the contract was a purely commercial one, but, even if the theory of restrictive sovereign immunity were applicable, the question to be determined would not be whether the contractor was engaged in a private act of commerce, but whether or not the Government of the Congo, acting as a visiting sovereign state through its duly accredited diplomatic representatives, was engaged in the performance of a public sovereign act of state. (Id., 64 ILR 24, 28).

Hence, the court considered as the decisive fact at issue for the determination of immunity vel non not the nature of the contract between the parties, but external circumstances, or motives that were the primary reason for the Congo to engage in this contractual relation.

The majority of the judges gave particular weight to the fact that the request to participate in the EXPO 67 was made by diplomatic representatives of the Congo, as well as by an employee of the ministry of foreign affairs of that country.

It goes without saying that this reasoning is conflicting with the very content of the restrictive immunity doctrine. The purpose of the activity is not relevant under this doctrine, nor is what status those have who have actually contracted with the private merchant, nor else what the motives were for entering such contractual relation.

The restrictive immunity doctrine makes sense only when one admits that a foreign state has two options, that is to either engage in public, governmental activity, de iure imperii, or in private and commercial activity, de iure gestionis.

It is not the quality of the functionary of the contracting government that is decisive for the qualification of the activity as either governmental or private, but the nature, and only the nature, of the activity itself.

A veritable act of state of government act by the Congo has not be proven in the present case. For that reason, the majority judgment was just another vintage of the absolute immunity doctrine, under slightly different terms.

It is important to see at this point that the court has not given an indication as to the burden of proof, as there was no litigation about facts. It was a mere obiter dictum.

There is more than a suggestion in the reasons for judgement of the Court of Appeal that in determining whether the act of a foreign sovereign is public or private, the burden of proof lies upon the sovereign to show that the act was a public one if it is to be granted sovereign immunity.

As I have related already, there is no dispute as to the facts in the present case and in my view, to the extent that it may have any bearing on the determination of this appeal, the question is whether the contract in question was purely private or commercial or whether it was a public act done on behalf of a sovereign state for state purposes, is one which should be decided on the record as a whole without placing the burden of rebutting any presumption on either party.’ [1971] R.C.S. 997, 1003, 64 ILR 24, 28–29, by Judge Ritchie for the majority of the judges).

This passage clarifies that there was no litigation about facts, and that the suggested burden of proof rule is to be taken as an obiter dictum.

In addition, what the court said about a presumption can only refer to a legal presumption, not to a presumption of facts.

The restrictive immunity doctrine has never had the meaning of a legal presumption in favor of jurisdiction in any action against a foreign state. This new immunity doctrine solely qualified as decisive for the question of immunity vel non, the nature of the activity in question. This is a factual assumption, not a legal presumption.

And it is for that reason that it’s a matter of the evidence in the record to decide it, and a matter also of the burden of proof for those facts at issue.

If it were a legal presumption, the burden of proof question never would come up in the first place, because the very notion of the burden of proof is always related to facts at issue, or pertinent facts, not to legal presumptions of any kind.

While a legal presumption may help determine the burden of proof in any particular case where there is no litigation about the facts at issue, the question of the burden of proof never comes up.

It is for that very reason that we consider this judgment not as prejudicial for the later development of sovereign immunity in Canada, as some voices in the Canadian international law literature have suggested.

In the following developments, the Supreme Court, distinguishing the case from the precedent Allan Construction Ltd. v. Government of Venezuela, [1968] Que.P.R. 145, [1968] Que.S.C. 523, introduced a new element in the discussion.

In this case, the construction of the Venezuela pavilion at the EXPO 67 equally comprised the installation of a restaurant in the building.

The court qualified the contract between the architect and the government of Venezuela as commercial, and the Supreme Court, reporting it, concluded that because of the fact that Venezuela sold alcoholic beverage and products of Venezuela in the restaurant, Venezuela wanted to ‘exploit’ that restaurant for commercial gain, which was not the case for the Congo where no such commercial ‘exploitation’ of the pavilion was planned or conducted. [1971] R.C.S. 997, 1003–1004).

This argument doesn’t convince. A commercial venture does not depend on the fact that direct commercial gain is derived from the commercial activity; it is all kinds of relations that fall in the commercial sphere, because by its nature, a contract is of a private nature, whatever the intended motives are behind such contract, whatever the purpose is for such activity.

The following developments of the court only show that the contract was concluded with the government of the Congo, not an organism of that government, but that doesn’t alter the nature of the activity, otherwise the restrictive immunity theory would be nonsensical.

What the Supreme Court of Canada did in this case was simply to apply the absolute immunity doctrine under the terms of the restrictive immunity doctrine thereby messing up quite a few legal notions and standards; the court never even touched the decisive question, namely what the nature was of the service contract between the architect and a foreign government for the construction of a building.

It is difficult to imagine how the government of the Congo could have used a Canadian architect for effecting an act of state, a governmental act? The very idea sounds absurd.

It is for that matter not surprising that Judges Laskin and Hall rendered important and remarkable minority opinions, rendered by Judge Laskin, [1971] R.C.S. 997, 1010 ff. Judge Laskin referred to international law jurisprudence that describes and explains the restrictive sovereign immunity doctrine, and concluded:

If the immunity claimed herein is to be tested on a restrictive basis, as I think it should be, there is, in my opinion, not enough in the record upon which a ready affirmation of immunity can be founded. The case must certainly proceed further for the claim of immunity to be determined. (Id., 64 ILR 24, 45).

At this point, we need to observe that in Canadian civil procedure law, immunity of jurisdiction is construed as a declinatory exception from the general competence of courts.

For ousting that jurisdiction, foreign states may invoke either §§163, 164 C.P.C., or §165 C.P.C.

§163 C.P.C.

A defendant, summoned before a court other than that before which the suit should be been instituted, may ask that the suit be referred to the competent court within the legislative authority of Québec, or that the suit be dismissed if there is no such court.

§164 C.P.C.

Lack of jurisdiction by reason of the subject matter may be raised at any stage of the case, and it may even be declared by the court on its own motion. The court adjudicates as to costs according to the circumstances.

§165 C.P.C.

The defendant may ask for the dismissal of the action if: 1. There is lis pendens or res judicata; 2. One of the parties is incapable or has not the necessary capacity; 3. The plaintiff has clearly no interest in the suit; 4. The suit is unfounded in law, even if the facts alleged are true.

— Henri Kélada, Code de Procédure Civile du Québec (1980), 199, 207–209.

The Congo, in the Venne precedent, invoked §§163, 164 C.P.C., thereby denying the jurisdiction of the court. Congo did not provide any proof as to its immunity claim, except that it was a foreign state, but the latter proof was even necessary under the absolutely immunity doctrine. To conclude, there was certainly a lack of proof in the record regarding the quality and nature of the activity in question. This burden, the Congo has not discharged. Judge Laskin develops:

In viewing the matter from the standpoint of an issue of restrictive immunity, I have taken a broader view of the declinatory exception than its terms, strictly speaking, justify. As set out in the Case of Appeal, the declinatory exception is a peremptory assertion of immunity of a sovereign State. There is nothing in the exception as framed to indicate any claim to immunity based on a restrictive theory. Such a claim might have been open if Congo had invoked art. 165 C.P.C. rather than art. 163 and 164. Had it done so, it would be conceding jurisdiction in the Superior Court to determine whether it was entitled to immunity under a restrictive theory. However, by reason of the way in which Congo proceeded and of the stand it took, this Court is faced, as were the courts below, with an unqualified contention that a sovereign State cannot as such be impleaded regardless of the activity in which it is engaged and out of which a suit against it is brought in a foreign domestic court. [1971] R.C.S. 997, 1024–1025, 64 ILR 24, 46).

That’s why the granting of immunity to the Republic of Congo by the Supreme Court of Canada can only be understood under the assumption that the court has applied the absolute rule of sovereign immunity. The argument that the nature of the activity in question was governmental is untenable under the restrictive immunity doctrine. Judge Laskin concluded therefore:

To allow the declinatory exception is thus to reaffirm the doctrine of absolute immunity. I have made plain my opinion that the doctrine is spent. If so, it would be wrong to revive it on any view of a deficiency of evidence to overcome any suggested presumption that when a sovereign State acts through an accredited diplomatic representative any ensuing transaction with a private person is for the so-called public purpose. At this stage of the action there is no question of requiring evidence from the plaintiff or from Congo to negate or establish immunity on a restrictive basis. That comes later. Hence, I need not now be concerned with fixing any burden of proof. The only question is whether the action should be throttled at its inception or whether it should be allowed to proceed. [1971] R.C.S. 997, 1025, 64 ILR 24, 46).

This passage brings us back to our question who bears the burden of proof. We already saw earlier that this question was not pertinent in the present case as the facts were not litigated about.

In so far, the opinion of Judge Laskin primes in clarity over the majority judgment. And there is an addition question to ask. There are two obiter dicta on the problem of the burden of proof. The crucial question is if the obiter dictum of the Supreme Court has refuted or invalidated the one that was brought forward by the Court of Appeals.

I will come back to that question further down.

The Canadian Court of Appeals, before the Venne leading case, confirmed its earlier opinion that there is indeed a presumption of jurisdiction in Canadian civil procedure law, from which sovereign immunity is the exception.

This was pronounced in Penthouse Studios, Inc. v. Government of the Sovereign Republic of Venezuela, [1969] 8 D.L.R.3d 686 (C.A.), 64 ILR 20 (1983). The plaintiff, a Canadian company, had sold merchandise to the government of Venezuela for its pavilion at the EXPO 67. After the delivery, the plaintiff desired to have the merchandise returned as it had not been paid. In accordance with its decision in Venne, the Court of Appeals refused to grand immunity to Venezuela.

— In Smith v. Canadian Javelin Ltd. et al, [1976] 68 D.L.R.3d 428 (Ont.H.C.), 64 ILR 47 (1983), the ‘Securities and Exchange Commission’ (SEC) of the United States government, one of the defendants, had filed a suit against Canadian Javelin at a US federal court, because of an alleged violation of American security laws by the Canadian company. The plaintiff, shareholder and director of that company, then filed a suit at the High Court of Ontario with the objective to question the validity of the American judgment. The Court, applying the restrictive immunity doctrine, granted immunity to SEC with the argument that this commission, by invoking American security laws, had acted within its public, governmental authority.’

Six years after this court’s decision in Venne, it definitely applied the restrictive immunity doctrine in Zodiak International Products Inc. v. Polish People’s Republic, [1977] 81 D.L.R.3d 656 (C.A.Que.), 64 ILR 51 (1983). Zodiak sued Poland for damages as a result of a contract for distributing Polish films in Canada that the Polish government had repudiated.

The court rejected Poland’s immunity claim, qualifying the contract as being of a commercial nature. Referring to its earlier judgment in Venne, the court quoted the obiter dicta from that decision, and the minority opinion of Judges Laskin and Hall which at that early time already were unequivocally in favor of the restrictive immunity doctrine.

In Re Royal Bank of Canada and Corriveau et al., [1980] 103 D.L.R.3d 520 (Ont.H.C.), 64 ILR 69 (1983), the action was about a rental contract that Corriveau, a landlord, had concluded with the Cuban Republic for its embassy in Canada.

Cuba cancelled the lease before the stipulated termination date and the personnel moved out of the building. As a result, the heating system in the villa was damaged because heating pipes were freezing in the winter. The owner got a default judgment against Cuba that granted him a considerable amount of damages.

As Cuba did not want to pay the damages, the landlord tried to seize the embassy’s bank account. Cuba claimed immunity and was granted immunity from attachment. It was obvious and not contested that the account was held in the name of the embassy of Cuba.

— 64 ILR 69, 75: ‘The money in the bank was obviously deposited in the name of the embassy.’

Consequently, the court concluded that the active balance on the account was ‘in possession of the foreign sovereign state.’ Before arriving at that conclusion, the court briefly reflected about the allocation of the burden of proof.

The question of onus or on whom lies the duty of establishing sovereign immunity or exemption from it is something of a problem. (Id.)

The judge referred to the analogous reflections of Judge Ritchie in Venne, but was not considering the question if the question of the burden of proof was relevant at all in the record.

It wasn’t because no facts were contested, not even the question if the active balance on the embassy account might have served commercial purposes.

The judge did not bother and granted immunity to the account as a matter of nondiscrimination. The sole fact that the account was ‘in possession’ of the Republic of Cuba was considered sufficient by the judge for granting immunity from attachment. In fact, the judge only inquired into the maintenance of the embassy and held it was governmental, but not the active balance on the account:

The only record before me shows that the leased premises were for governmental use and that the moneys in the bank were in the ‘possession’ of a foreign sovereign State. For these reasons I must hold that Cuba is entitled to claim sovereign immunity and the execution was improper. (Id.)


Construction of the Act

The State Immunity Act 1982 of Canada entered into force on 15th of July 1982.

— The original bilingual version is published in Rigaldies/Turp/Woehrling, Droit International Public (1983), Notes et Documents, Tome 3, 1229 ff. The English version of the act is published in 21 ILM 798 (1982).

It is not different from the other, earlier national enactments on foreign sovereign immunity. The jurisdictional immunity rule is to be found in section 3; the rule for immunity from execution is stated in section 12 STIA 1982.

— It is to be noted that the STIA 1982 was amended in 1985, with the result that section 11, that was containing the provisions regarding immunity from execution, became section 12 by virtue of the State Immunity Act, R.S. 1985.

§3 STIA 1982

(1) Except as provided by this Act, a foreign state is immune from the jurisdiction of any court in Canada.
(2) In any proceedings before a court, the court shall give effect to the immunity conferred on a foreign state by subsection (1) notwithstanding that the state has failed to take any step in the proceedings.

§12 STIA 1982

(1) Subject to subsections (2) and (3), property of a foreign state that is located in Canada is immune from attachment and execution and, in the case of an action in rem, from arrest, detention, seizure and forfeiture except where —
(a) the state has, either explicitly or by implication, waived its immunity from attachment, execution, arrest, detention, seizure or forfeiture, unless the foreign state has withdrawn the waiver of immunity in accordance with any term thereof that permits such withdrawal;
(b) the property is used or is intended for a commercial activity; or
(c) the execution relates to a judgment establishing rights in property that has been acquired by succession or gift or in immovable property located in Canada.
(2) Subject to subsection (3), property of an agency of a foreign state is not immune from attachment and execution and, in the case of an action in rem, from arrest, detention, seizure and forfeiture, for the purpose of satisfying a judgment of a court in any proceedings in respect of which the agency is not immune from the jurisdiction of the court by reason of any provision of this Act.

(3) Property of a foreign state
(a) that is used or is intended to be used in connection with a military activity, and —
(b) that is military in nature or is under the control of a military authority or defense agency is immune from attachment and execution and, in the case of an action in rem, from arrest, detention, seizure and forfeiture.
(4) Subject to subsection (5), property of a foreign central bank or monetary authority that is held for its own account and is not used or intended for a commercial activity is immune from attachment and execution.
(5) The immunity conferred on property of a foreign central bank or monetary authority by subsection (4) does not apply where the bank, authority or its parent foreign government has explicitly waived the immunity, unless the bank, authority or government has withdrawn the waiver of immunity in accordance with any term thereof that permits such withdrawal.

Organisms of a foreign state are assimilated with foreign states, for jurisdictional immunities, §2 STIA 1982, except the provisions regarding service of process, §9 STIA 1982. The same distinction is held for matters of immunity from execution, §12(1), (3) STIA 1982.

This structure is quite similar to the American act; in fact, for these matters, the Canadian act follows the FSIA 1976, not the British Act and those modeled after it. As to property belonging to a foreign central bank, the STIA 1982 also adopted the American model, §12(4) STIA 1982, not the British model. (§14(4) STIA 1978, §16(4) STIA 1979, §15(4) STIO 1981, §15(3) FSIA 87, 1981).


Immunity from Jurisdiction

Professor Castel submitted a clear vote for the allocation of the burden of proof regarding jurisdictional immunity in Canada, back in 1980:

If we accept the restrictive or relative immunity doctrine, the burden is upon the foreign state to prove its entitlement to immunity. It is not sufficient that it just claims immunity, because sovereign immunity is a derogation from the general rule of the competence of the tribunals. The plaintiff does not have to prove that the activity in question was one jure gestionis. (…) Now, in Québec, we have to start from the principle that nobody is entitled to sovereign immunity, except he can prove to the satisfaction of the court that he is so entitled. (Jean-Gabriel Castel, Droit international privé Québecois (1980), 720 (Translation mine).

This opinion is founded upon the conclusion that immunity is an exception from the general rule of the unlimited territorial competence of the courts in the forum state. We have already seen earlier in this study that this point of view gains more and more merits in present international law literature that deals with foreign sovereign immunity litigation.

We also have seen the difficulty to derive conclusions regarding the burden of proof when looking at the rule-and-exception principle and the drafting techniques of the immunity acts because the question is precisely what is the rule and what is the exception?

If we hold that competence or jurisdiction of civil courts in the forum state is the rule, and foreign sovereign immunity the exception, we in a way disregard the historical fact that for more than a century all international law practice and literature was adhering to the opposite rule, that is, that immunity from jurisdiction is the rule, and jurisdiction over a foreign state, the exception.

The confusion can well be seen in the fact that the same Professor Castel wrote, after the entering into force of the STIA 1982 in Canada, a statement in his book Canadian Conflict of Laws (1986), 170, that flagrantly opposed his former opinion:

The Act affirms the rule that immunity is to apply notwithstanding the failure of the state to take any steps in the proceedings and sets out the instances in which immunity is to be denied by way of enumerated exceptions from this general grant of jurisdictional immunity. This provision is intended to avoid both the doubts surrounding the need for specially pleading the defense of jurisdiction and the potential dangers an inactive or delinquent foreign state could run. It does not require anything more of a plaintiff than that he establish a prima facie case that one of the exceptions apply in the circumstances. Thus, in his pleadings he should disclose some basis for the application of one of the exceptions.

Castel thus modified his former opinion, obviously under the spell of the drafting technique of the immunity statute, and its ‘general rule of immunity.’

From this fact and the additional fact that the court has to state on its jurisdiction sua sponte, Castel drew the conclusion that the burden of proof was with the plaintiff.

Now let us see what is right and wrong in this argument. First, the fact that the court needs to inquire about immunity vel non sua sponte has certainly no impact upon the allocation of the burden of proof. Even for the FSIA, where the legislative history contains a clear statement on the burden of proof for immunity from jurisdiction, the United States Supreme Court has ruled in Verlinden that courts have to state about the immunity claim sua sponte, even in case the foreign state does not enter an appearance.

This opinion may have some special importance for the rare cases in which the court faces a non liquet situation, but it doesn’t free the foreign state from its burden to show some basis for its immunity claim, by establishing a prima face case of immunity from jurisdiction.

— For an example of such non liquet, consider the foreign state has not produced any evidence in support of its immunity claim and the plaintiff has equally not produced any evidence as to the applicability of an exception to sovereign immunity; in such a case, the court cannot simply deny immunity.

In accordance with the Supreme Court of Canada’s Venne decision, in a case where we find no proof for the facts at issue, there is namely neither a presumption for immunity, nor a presumption for nonimmunity.

In addition, Castel has not taken into account the fact that all immunity statutes are uniformly drafted that way, with an immunity rule at the top and exceptions that follow, without this drafting technique having any but historical reasons, and certainly not the reason that that structure would say anything about the burden of proof.

As we have seen earlier in this study, this argument really was largely discussed in American and British jurisprudence.

And yet, Castel’s opinion seems to have been influenced by this discussion, as he only speaks about the evidential burden, which he sees to be placed on the plaintiff, but not the persuasive or legal burden. At the end of the day, while on first sight Castel’s view on the burden of proof seems to be in flagrant opposition with the legislative history of the FSIA 1976 as well as American jurisprudence, the terms of his statement could be interpreted in accordance with the Alberti precedent, namely that the plaintiff does have a certain burden of the pleadings for pointing to the exception he wishes the court to apply.

However, this does not derogate from the principle that it’s upon the foreign state to begin with producing evidence by establishing a prima facie case in support of its immunity claim. It is then upon the plaintiff to prove the applicability of an exception by a preponderance of the evidence.

This is why the two opinions lead to practically the same result. The difference only becomes crucial in case of a non liquet, because it’s there where the persuasive or legal burden comes into play, and the judge needs to dismiss the party on which rests this burden.

According to American, British, Singaporean, Pakistani and South African case law, this is the foreign state; according to Castel it should be the plaintiff.

What we are talking about here is what could be called the ‘immunity risk.’

We have seen that the rule-and-exception principle alone cannot deliver correct results for getting at a conclusive answer as to who bears the immunity risk. I just repeat here the conclusions we have found to be valid when examining this question under the British act.

We found that the content of the new restrictive immunity rule is essentially different than the older absolute immunity rule, and that it’s not just a modification or another exception to that rule (commercial activity exception).

We found that it is a genuine new rule and that it replaced the old rule. As to the content of the restrictive immunity doctrine, we found that it basically denies immunity to foreign states, except where the foreign state demonstrates that the activity in question was of a public, governmental character.

In other words, this new restrictive immunity rule principally denies immunity, except in special cases that the defendant foreign state needs to invoke to be granted the privilege of immunity. In still other words, we can say that this new immunity rule basically got us back to the original pre-immunity rule, which is the total jurisdiction of the forum state.

Now, from these findings flows out a quite certain allocation of the burden of proof; it is basically upon the foreign state to demonstrate that despite the exceptions to restrictive immunity, there is a case of immunity because the activity was a public, governmental act.

This allocation of the burden of proof is thus inherent in the structure of the new restrictive immunity doctrine and its content.

Castel’s pre-statute argument was heading in the same direction. And this argument was not invalidated by the FSIA 1982, despite the ambiguous drafting of the statute, with putting a residual immunity as the opening clause. In fact, two other commentators of the STIA 1982 were not misled by this merely historical drafting technique of the statute. In 1982, James G. McLeod stated:

The question of the onus of establishing the facts necessary to invoke the doctrine is similarly confused. Owen, J.A., in the Quebec Court of Appeal, felt that as immunity was an exception to the general rule, the onus was on the sovereign to establish that he was entitled to it. [Citing the precedent Venne v. Congo] A majority of the Supreme Court of Canada was, however, of the opinion that there was no prima facie assumption. [Citing the Supreme Court judgment in Congo v. Venne]. It is difficult to understand this position because the court must have some facts introduced before it is to raise the issue of sovereign immunity. Either the sovereign must prove the act was within his immunity or the plaintiff must prove it was not. Since plaintiffs do not prove or allege in all cases a lack of immunity on the part of the defendant, the onus appears to be, in fact, on the sovereign to at least raise the issue. (…) A rule of law applicable at one time in history may not be applicable today, not because it has never been correct, but because the facts and circumstances which gave rise to it and supported it have ceased to exist. Today, when more and more governments are engaging in ordinary commerce in competition with private traders, the sovereign’s wealth and contacts give him a sufficient advantage without allowing him to avoid liability if, for any reason, he decides not to honour his commitments. The onus should be on the sovereign to show that there is some reason why immunity is required in the circumstances.

— James G. McLeod, Conflict of Laws (1983), 74, citing Hersch Lauterpacht, The Problem of Jurisdictional Immunities of Foreign States, 28 BRIT.Y.B.INT’L L. 220 (1951) and the British precedent Rahimtoola v. Nizam of Hyderabad, [1957] 3 W.L.R. 884, 910 (H.L.) by Lord Denning, M.R.

Apart from McLeod’s criticism of the Supreme Court decision in the Venne case, his way to argue on the grounds of the restrictive immunity doctrine is basically how we have proceeded in this complex question for finding a valid allocation of the burden of proof, one namely that is independent from any treachery drafting technique or rule-and-exception hassle.

In addition, McLeod cites quite a number of precedents where courts placed the burden of proof on the foreign state for its immunity claim. (Id., p. 74, note 112). Brian Douglas Coad, in The Canadian State Immunity Act, XIV LAW & POL’Y INT’L BUS. 1179–1220, at 1220 (1982–83), also concluded:

In conclusion, it should be stressed that although the Canadian Act goes far toward restricting immunity and providing the means to satisfy judgments, it fails in one critical aspect — the allocation of the burden of proof on the issue of commercial activity.

The issue is crucial to a plaintiff’s success under the Act. If the burden rests on the plaintiff as Venne and the structure of the Act suggest, the Act’s effectiveness will be undercut severely because the Canadian plaintiff is in a poor position to obtain evidence to prove a foreign government’s involvement or intention to be involved in commercial activities.

It would be preferable to place the burden of proof as to immunity on the foreign state. Such an approach would be more consistent with the stated purpose of the Act — to place Canadian plaintiffs in the best circumstances — and is supported by the view that the Act’s numerous exceptions to immunity create a presumption against immunity.

Future jurisprudence in Canada, especially on the Supreme Court level, will be bound to acknowledge that under all other immunity statutes, the burden of proof, for jurisdictional immunity, is upon the foreign state.

What we are saying in this study goes even beyond; we are holding that a rule of international law has been formed since then that places the burden of proof for matters of jurisdictional immunity upon the foreign state defendant of the litigation.

In addition, the Supreme Court of Canada will have to see that Canadian Appeal Courts have been more progressive, and more lucid, in that respect, and have clearly placed the burden of proof upon the foreign state defendant of the action.

Finally, most Canadian international law experts pronounced themselves in favor of this evidence rule. Professor Castel’s idea to place the burden on the plaintiff cannot be taken as a final word, so much the more as he only alluded to the evidential burden and said nothing about the allocation of the persuasive or legal burden.

As evidential burden and legal burden coincide at the start of the action, Professor Castel would have to go all the way through and claim that the ultimate or legal burden of proof would be equally with the plaintiff. However, we believe that we are leaving the ground of international law if we would want to defend that position. It is simply untenable under the present state of development of the restrictive immunity doctrine worldwide.

It has to be seen also that the Supreme Court of Canada is not bound by the Venne precedent as the court had stated there on the burden of proof only in an obiter dictum.

Actually the Supreme Court, to repeat it, only guarded against the admission of an a priori presumption in favor of either competence or immunity. It is only after the foreign state has made a prima facie case for its entitlement to immunity that we can speak of a presumption, not before.


Immunity from Execution

In 1980, Professor Castel stated that ‘the domain of immunity from execution is vaster than the domain of immunity from jurisdiction.’

The Canadian Act has not changed that legal situation. The rule of immunity from execution, as well as the three limited exceptions to that rule, are to be found in section 12(1) of the statute. For organisms of a foreign state, §12(2) contains a special provision:

§12(2) STIA 1982

Subject to subsection (3), property of an agency of a foreign state is not immune from attachment and execution and, in the case of an action in rem, from arrest, detention, seizure and forfeiture, for the purpose of satisfying a judgment of a court in any proceedings in respect of which the agency is not immune from the jurisdiction of the court by reason of any provision of this Act.

This provision, similar to the FSIA 1976 of the United States, puts organisms of a foreign state on the same level of immunity protection as foreign states, which means the burden of proof rules valid for foreign states, also apply to their organisms.

In Re Royal Bank of Canada and Corriveau et al., [1980] 103 D.L.R.3d 520 (Ont.H.C.), 64 ILR 69 (1983), a case we have already discussed, and where the matter was about seizing an embassy bank account, the court granted immunity on the sole ground of the account being ‘in possession’ of the foreign state.

This decision was obviously motivated by the same protective thinking regarding embassy accounts as the House of Lords decision in Alcom, where immunity was granted to an embassy bank account held in London, and where the burden of proof of the plaintiff was clearly stated.

In fact, the development of immunity from execution in Canada hardly differs from the other countries examined in this study.

The field of immunity from execution and the protection of property belonging to foreign states simply follows different rules than jurisdictional immunities, and this distinction is recognized in all the jurisdictions we have examined.

In other words, the field of immunity for property belonging to foreign states is much more protected, and exceptions are fewer.

The FSIA 1982 only allows three exceptions. This result is to be seen confirmed in the Re Royal Bank precedents that is really on the same lines of reasoning as the House of Lord’s decision in Alcom and the decision of the Constitutional Court of Germany of 13 December 1977.

We can thus conclude that in Canada, as in the other jurisdictions previously examined, the rule of immunity from execution is as tight as it was traditionally, and there are only few exceptions that derogate from it. In this sense, the rule is still ‘absolute’, as it functions as a legal presumption in dubio pro immunitatem.

Under these conditions, the burden of proof is upon the plaintiff for the applicability of an exception. It is thus upon the plaintiff to begin with producing evidence, and establish a prima face case for the applicability of an exception.

The evidential burden then shifts toward the foreign state to rebut the prima facie presumption. But the persuasion or legal burden is clearly with the plaintiff, which means that in case of a non liquet, the court has to grant immunity, as the presumption says so. In other words, the immunity presumption in matters of immunity from execution requires the judge to decide, in all cases of doubt, in dubio pro immunitatem.


Conclusion

For the State Immunity Act 1982 of Canada, we found the same allocation of the burden of proof as under the other immunity statutes examined in this study.

In matters of jurisdictional immunity, the burden of proof is upon the foreign state. Once the foreign state, who begins with producing evidence in support of its immunity claim, establishes a prima facie case on the elements that it is a foreign state and that the activity in question was of a public, governmental nature, the evidential burden shifts toward the plaintiff who needs to rebut the prima face presumption if he is to win.

In any case, the judge needs to decide on the court’s jurisdiction sua sponte; hence, he needs to decide on the immunity claim, as immunity would bar jurisdiction, equally sua sponte.

Organisms of the foreign state are assimilated with the latter, under the FSIA 1982. With regard to immunity from execution, the immunity rule is still ‘absolute’ in the sense that only three precise exceptions are permitted.

In that sense, the rule of immunity from execution functions as a presumption in dubio pro immunitatem, which impacts upon the burden of proof. From general evidence principles it follows that the burden is upon the party who needs to struggle against the presumption if he is to win; this is the plaintiff or judgment creditor.

In this case, it is the plaintiff who has the right to begin with producing evidence and needs to overcome the presumption of immunity by submitting evidence satisfactorily to the court that one of the three exception applies. One the plaintiff has established a prima facie case demonstrating that one of the exceptions applies, the foreign state is charged with the evidential burden to rebut the evidence.

In any case of doubt or non liquet situation, the persuasive, legal or ultimate burden is upon the plaintiff; in other words, the evidence rule to be applied in all matters of immunity from execution is in dubio pro immunitatem.


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

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