Evidence and Burden of Proof in Foreign Sovereign Immunity Litigation: A Guide for International Lawyers and Government Counsel (9)


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


General Conclusion

Our comparative analysis of existing immunity statutes in the Anglo-American legal system has clearly revealed concise principles that govern the allocation of the burden of proof in matters of sovereign immunity litigation.

The Burden of Proof for Immunity from Jurisdiction

As for jurisdictional immunity, we can conclude that in principle, the burden of proof is upon the foreign state for submitting evidence qualifying for a prima face case, on two elements, (i) that it is a foreign state, and (ii) that the activity in question was of a public, governmental nature.

The foreign state has the right to begin with producing evidence, in other words, the evidential burden is first on the foreign state to submit prima facie evidence in support of its immunity claim.

Then the evidential burden shifts toward the plaintiff for rebutting this evidence, by showing satisfactorily to the court that one of the numerous exceptions applies.

As a matter of the logic of pleadings, the plaintiff is supposed to submit to the court in its brief which of the exceptions should be applied; in addition, jurisprudence has repeatedly shown that the foreign state is not obliged to refute all the exceptions to jurisdictional immunity, but only those the plaintiff relies upon.

If the plaintiff’s brief lacks precision on that particular matter, the foreign state can file its prima facie case in a general manner, by stating, without further, that the activity in question was of a public, governmental nature.

For effecting this proof, the foreign state can typically submit an affidavit or certificate by one of its officials in the forum state, typically the head of the foreign state’s embassy, to the effect that the activity the litigation bears upon, was of a governmental nature.

Once the foreign state has established such prima facie evidence, the evidential burden shifts toward the plaintiff for rebutting the prima face case by proving that the exception or exceptions it was pointing to in its brief, are applicable.

If this proof is found conclusive by the court, immunity will be denied to the foreign state. If the plaintiff fails to produce such evidence, the prima facie evidence works like a presumption pro immunitatem and immunity is to be granted.

If the foreign state is unable to establish the prima facie case, the court can in principle refuse to grant immunity.

In this case, there is however no presumption in favor of either jurisdiction or immunity. The court is free to weigh the arguments submitted by both parties. However, the court cannot simply deny immunity if the foreign state was not defending itself in court, or did not enter an appearance. In this latter case, the decision must notably be based upon all the pertinent facts, and the court needs to brief the parties for further evidence.

The risk of nonpersuasion, or ‘immunity risk’ is upon the foreign state, in any case of non liquet. In matters of immunity from jurisdiction we can thus talk about an immunity rule in dubio contra immunitatem.

This argument is valid a fortiori for organisms of a foreign state, either that they are assimilated to foreign states or their status is a lesser protected one in the sense that there is a presumption of nonimmunity regarding those agencies or separate entities.

The Burden of Proof for Immunity from Execution

For matters of immunity from execution, the old absolute immunity rule was not replaced by a newer restrictive concept as that was the case for jurisdictional immunities. As a result, this rule is still ‘absolute’ in the sense that only few exceptions are allowed; in other words, it’s a full general rule, not, as in matters of jurisdictional immunities, a residual concept.

This is shown by the fact that this rule really functions like a presumption. In other words, no prima facie case to its effect needs to be made; its application is immediate.

The British, the Singapore and the Pakistani Acts even go farther, in reducing the standard of proof to a simple certificate from the head of the foreign mission, sufficient for demonstrating that the property in question serves governmental functions.

This is a lesser standard of proof than prima facie evidence; it could be called a minimal form of evidence, and it is easy for the foreign state to produce.

The decision of the German Constitutional Court of 13th of December 1977 has clarified that such a certificate is all a foreign state needs to produce, and that requiring further would not be in accordance with international law.

Consequently, the burden of proof for the applicability of one of the exceptions is upon the judgment creditor; it is he who has the right to begin with producing evidence.

In other words, the evidential burden is upon the plaintiff or judgment creditor at the onset of the suit for making a prima facie case on the applicability of one of the exceptions to immunity from jurisdiction.

The burden then shifts to the foreign state who can relatively easily rebut this evidence by demonstrating the before-mentioned certificate.

The evidential burden then shifts again to the plaintiff to show, by a preponderance of the evidence satisfactorily to the court that one of the exceptions to immunity from execution applies.

In any case of doubt, or non liquet situation, the ultimate or legal burden comes in play which in this case is upon the plaintiff.

In other words, the rule to be applied in cases of doubt is in dubio contra immunitatem. Hence, the ‘immunity risk’ is upon the plaintiff or judgment creditor.

For certain types of property, for example military property or central bank assets, the statutes are even stricter and differ only in how tightly they protect such property from any measure of execution, for the obvious reason of not discouraging foreign states to invest in property in any forum state, and for reasons of general non-interference in the governmental authority of other states.

The pertinent facts, or facts at issue, are those which are crucial for the decision of granting or denying immunity. It is those facts that are described in the exceptions to both immunity rules.

The foreign state who establishes its prima facie case in support of its immunity claim, can namely invoke to have acted within sensibly political domains that the jurisprudence has recognized both in the United States and Britain.

Such a catalogue of sensibly political domains that stay outside of judicial scrutiny was recognized and outlined with sufficient clarity for having become a standard of international law.

The Means of Proof

In all jurisdictions examined in this study, all general means of proof are admitted, while a certain preference is given to the affidavit in the United States and Canada, and certificates from heads of missions, in the other jurisdictions. In general, it is important to note that different means of proof do not have any impact upon the allocation of the burden of proof.

American federal courts have shown a certain openness as to the acceptance of various means of proof, such as testimony, affidavit, or even a simple statement in a letter of an ambassador of the foreign state. Testimony has for example been brought forward in the important precedent De Sanchez v. Banco Central de Nicaragua, 515 F.Supp. 900 (E.D.La. 1981), 63 ILR 584 (1982), where the district court had to qualify a monetary exchange activity of the Central Bank of Nicaragua. The interesting detail in this case is that the court used the declarations of a witness of the plaintiff in order to finally decide in favor of the defendant, thus dismissing the claim.

The evidence procedure is very well demonstrated in this case and is a good example to learn how testimony can possibly be offered in foreign sovereign immunity litigations. (515 F.Supp. 900, 907).

The affidavit is the usual means of proof in all foreign sovereign immunity actions. Not only can the foreign state prove its prima facie case with an affidavit, but also the plaintiff can put forward affidavits and documents in support of its motion.

See, for example, Mol, Inc. v. People’s Republic of Bangladesh, 572, F.Supp. 79, 82 (D.Or. 1983).

At least in one case, Harris v. Vao Intourist, Moscow, 481 F.Supp. 1056 (E.D.N.Y. 1979), 63 ILR 318 (1982), the district court held sufficient a simple letter of the Soviet Ambassador in order to establish the necessary prima facie case of immunity for the foreign state. Such a letter, according to the court, has a persuasive quality.

— 481 F.Supp. 1056, 1058, citing Yessenin-Volpin v. Novosti Press Agency (Tass), 443 F.Supp. 849 (S.D.N.Y. 1978), 63 ILR 127.

However, there is a certain preference for the affidavit. If an affidavit is to be contradicted, the adequate proof would be a responsive affidavit as has been presented by the plaintiff in the case Sugarman v. Aeromexico, Inc. This is to be seen in the interesting procedure in Sugarman v. Aeromexico, Inc.:

Aeromexico, asserting by way of affidavit that it was a Mexican corporation wholly owned by the Mexican government, … Sugarman filed a responsive affidavit asserting that a New York-based public relations officer of Aeromexico had advised Sugarman’s attorney that Aeromexico was a Mexican corporation and … a New York corporation. The relevance of this affidavit was that if, in addition of being a Mexican corporation, Aeromexico had been incorporated in New York, it would have fallen outside the sovereign immunity decreed by the Foreign Sovereign Immunities Act. 28 U.S.C. §§1332(a) and (c) and 1603(b)(3). Thereafter, Aeromexico submitted a further affidavit enclosing a letter from New York’s Secretary of State certifying that Aeromexico was not to be found on the roster of New York corporations. (626 F.2d 270, 272 (3d Cir. 1980).


Summary Theses

— The restrictive immunity doctrine constitutes a new rule of international law. It has not merely added a new exception, the so-called commercial activity exception, to the old, more ‘absolute’ rule of immunity. It has completely replaced that old rule with a new, residual immunity concept, a doctrine that allows a vast number of exceptions.

— The new restrictive immunity doctrine grants sovereign immunity to foreign states only in exceptional cases, namely when the activity in question was of a public, governmental character. It can be said that the new restrictive immunity doctrine has re-affirmed the prior and more general rule which is the total competence of the courts in any forum state.

— The nature and content of the new restrictive immunity rule has a direct impact upon the burden of proof. In other words, the allocation of the burden of proof follows directly from the restrictive immunity doctrine, not as a result of a shaky and unverifiable rule-and-exception schema.

— In matters of jurisdictional immunities, the burden of proof is upon the foreign state to establish a prima facie case on two elements, (i) that it is a foreign state and (ii) that the activity in question was of a public, governmental nature. The evidential burden if thus upon the foreign state at the start of the trial, and it’s the foreign state who has the right to begin with producing evidence.

— After the foreign state succeeded in establishing a prima facie case, either by affidavit or other means of proof, the evidential burden shifts toward the plaintiff. It is then upon the plaintiff to rebut the prima face evidence by showing, by a preponderance of the evidence, satisfactorily to the court that the exception or exceptions he relied upon, really applies.

— If the foreign state is not able to establish a prima facie case, immunity is to be refused. In case of a non liquet, the ‘immunity risk,’ the burden of persuasion or legal burden is upon the foreign state. In this case, we may speak of an evidence rule that is ‘in dubio contra immunitatem.’ However, this rule is not without exceptions, for the court can not just simply dismiss the immunity claim if the foreign state does nothing to defend itself or does not enter an appearance.

In such a case, the court must brief the parties for bringing in more evidence to the record. Besides, a default judgment is only possible if the plaintiff can prove to the satisfaction of the court his full entitlement including the proof that an exception to immunity is applicable. Simple prima facie evidence does not suffice for meeting that burden.

— There is a catalogue of sensibly political activities of foreign states, where the jurisprudence both in the United States and the United Kingdom admitted a special protection of foreign states from judicial scrutiny.

This catalogue basically comprises foreign affairs, interior affairs, budgetary activity and national defense. In all those cases, immunity was granted to foreign states, while on first sight the nature of the activity in litigation was of a commercial nature. This catalogue, we hold, has become a part of international law and the precedents rendered under this header are to be considered as international leading cases that lawyers, government counsel, jurisprudence and state practice are likely to confirm and consolidate.

In such a case, we may speak of a ‘core area of sovereignty’ that tribunals of various countries have asserted and singularized and where immunity protection is stronger than in the usual case, as courts respect the core areas of foreign state activity, which as it is governmental, cannot be submitted to judicial scrutiny in any forum state without interfering in the internal affairs for foreign states.

— What is valid for foreign states is a fortiori valid for agencies or instrumentalities or separate entities of foreign states. Those enjoy jurisdictional immunity only in case that

(i) the foreign state would enjoy such immunity when at their place; and

(ii) they can prove to the full satisfaction of the court that they have acted in governmental authority when engaging in the activity that is at the basis of the litigation; for meeting this burden of proof, a simple prima facie case is not considered to be sufficient.

— The burden of proof regarding immunity from execution is reversed in the sense that the rule of immunity from execution is more complete, more integral and tighter than the rule of immunity from jurisdiction. As the two immunity rules have developed historically in a distinct manner, while the rule of jurisdictional immunity was pierced by numerous exceptions and represents but a residual concept, the rule of immunity from execution has remained firmly in place.

As a result, the burden of proof for overcoming the presumption the general rule of immunity from execution puts up, is upon the plaintiff or judgment creditor. If he cannot meet this burden, the property of the foreign state is immunity from attachment or seizure. In case of a non liquet, the ‘immunity risk’ is upon the judgment creditor. One may speak about an evidence rule ‘in dubio pro immunitatem.’ When the property services military purposes or it is assets or accounts of a foreign central bank, execution is still more severely restricted, if not impossible.

— In principle, all means of proof are admitted and allowed in foreign sovereign immunity litigation, with a certain preference for the affidavit or formal certificates issued by high emissaries of foreign states, typically the heads of foreign missions in the forum state.

The quality of proof offered in support of a foreign state’s immunity claim notably depends on the position of the witness in the internal hierarchy of the foreign state.

According to American federal jurisprudence, certificates and testimony of foreign officials enjoy the status of conclusive evidence to the purpose of affirming a foreign states’ activity was of a public, governmental character, or that property of the foreign state served governmental purposes.


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

Advertisements