1 It is proposed to deal only with arrest in the exercise of civil jurisdiction in ports, roadsteads, and internal waters. Cf. Geneva Convention on the Territorial Sea and the Contiguous Zone, 1958, 15 UST 1606, TIAS No. 5639, 516 UNTS 205, Art. 20(1) & (2). The distinction is not sufficiently attended to in the Brussels Convention relating to the Arrest of Sea-going Ships, 1952, 159 Brit. Foreign & St. Papers [BFSP] 368.

2 1 LNTS 199, [1980] Gr. Brit. TS No. 15 (Cmnd. 7800). Article 2 subjects such ships to the same “rights of action and procedure” as private ships. Article 3 exempts ships of war and other ships used exclusively on “Government and non-commercial service”; these are exempt from “seizure, arrest or detention by any legal process” (including actions in rem). There are approximately 23 parties to the Convention and its Protocol of 1934.

3 Supra note 1. The Convention deals with “sea-going ships” in general. Article 2 provides for liability to arrest in respect of a “maritime claim,” but Article 3 allows arrest of any sister ship owned by the same “person,” and “person” is defined to include “Governments, their Departments, and Public Authorities” (Art. 1(3)). In ratifying the Convention, both Yugoslavia and the United Kingdom reserved the right not to apply it to “warships or to vessels owned by or in the service of a State.” In this respect as well, the 1952 Convention is remarkably sweeping. See also the 1940 Montevideo Treaty on International Commercial Navigation Law (7 Hudson, M., International Legislation 460 (1941)Google Scholar), adopting a more restrictive, but not prohibitive, rule. The Treaty never came into force.

4 Geneva Convention on the Territorial Sea and Contiguous Zone, supra note 1. Virtually identical provision is made in Articles 28–32 of the UNCLOS Draft Convention on the Law of the Sea (Informal Text), UN Doc. A/CONF.62/WP.10/Rev.3 (1980), reprinted in 19 ILM 1131 (1980). And see generally Thommen, T. K., Legal Status of Government Merchant Ships in International Law (1962)CrossRefGoogle Scholar; Vitányi, , L’Immunité des navires d’Etat, 10 Neth. Int’l L.R. 33–61, 156–177 (1963)CrossRefGoogle Scholar.

5 Report of the International Law Commission on its 8th session, 11 UN GAOR, Supp. (No. 9) 22, UN Doc. A/3159 (1956). For the ILC debates, see [1954] 2 Y.B. Int’l L. Comm’n 73–75; 1 id. at 157–59; [1955] 1 id. at 140–42; [1956] 1 id. at 207–11.

6 Reservations have been made by Bulgaria, Byelorussia, Czechoslovakia, the German Democratic Republic, Hungary, Mexico, Romania, the Ukraine, and the USSR. Objections to the reservations are maintained by Australia, Denmark, Fiji, Japan, Madagascar, the Netherlands, Portugal (the Mexican reservation only), Thailand, Tonga, the United Kingdom, and the United States.

7 European Convention on State Immunity, May 16, 1972, [1979] Gr. Brit. TS No. 74 (Cmnd. 7742), Art. 30. Cf. also the Brussels Convention on the Liability of Operators of Nuclear Ships, May 25, 1962, 57 AJIL 268 (1963), Art. X(3) (phrased in terms of waiver).

8 Cf. Sinclair, , The European Convention on State Immunity, 22 Int’l & Comp. L.Q. 254, 283 (1973)Google Scholar; Brownlie, I., Principles of Public International Law 335 (3d ed. 1979)Google Scholar. The same is no doubt true of the Inter-American Convention on Private International Law (the Bustamante Code) of 1928 (86 LNTS 246), which never came into force. Articles 333–339 enunciate a general rule of immunity from both jurisdiction and execution, including civil and commercial cases, excluding only real or mixed actions where a “foreign contracting State or its head has acted as an individual or private person” (Art. 335).

9 Cf. Art. 24, which allows extension by declaration (vis-à-vis another declaring state) of further exceptions from immunity “to the extent that its courts are entitled to entertain proceedings against States not party to the present Convention,” but stipulates that such declarations are “without prejudice to the immunity from jurisdiction which foreign States enjoy in respect of acts performed in the exercise of sovereign authority (acta iure imperii).” Cf. Art. 27(2). Of the four parties to the Convention, two (Belgium and the United Kingdom) have made such declarations.

10 Cf. Preamble, Arts. 21 and 22.

11 Arts. 20 and 21. See generally Knierim, , Sovereign Immunity from Judicial Enforcement: The Impact of the European Convention on State Immunity, 12 Colum. J. Transnat’l L. 130 (1973)Google Scholar; Sinclair, supra note 8, at 273–76; Krafft, , La Convention européenne sur l’immunité des Etats et son protocole additionnel, 31 Annuaire Suisse de Droit Int’l 11, 20–23 (1975)Google Scholar; Wiederkehr, , La Convention européenne sur l’immunité des Etats du 16 mai 1972, [1974] Annuaire Français de Droit Int’l 924, 936–38 Google Scholar.

12 Treaty of Versailles, June 28, 1919, Art. 281 (Germany); Treaty of St.–Germain, Sept. 10, 1919, Art. 233 (Austria); Treaty of Neuilly, Nov. 27, 1919, Art. 161 (Bulgaria); Treaty of Trianon, June 4, 1920, Art. 216 (Hungary); Treaty of Sevres, Aug. 10, 1920, Art. 268 (Turkey, unratified).

13 192 LNTS 289. As at September 1979, there were 22 parties to the Rome Convention.

14 Cf. Art. 2. The 1952 Brussels Convention contains a somewhat similar restriction; supra note 1, Art. 1(2).

15 Art. 30 of the Paris Air Navigation Convention of Oct. 13, 1919, 112 BFSP 931, provides: “All State aircraft other than military, customs, and police aircraft shall be treated as private aircraft and as such shall be subject to all the provisions of the present Convention.” By contrast, the Chicago International Air Transport Agreement of Dec. 7, 1944, 171 UNTS 387, Article 3(a), excludes all state aircraft from the Convention. The Warsaw Convention for the Unification of Certain Rules relating to International Transportation by Air, 1929 applies expressly to carriage performed by the state, but makes no reference to immunity questions; TS No. 876, 137 LNTS 11, Art. 2. And cf. the restricted reservation allowed by Article 26 of the Hague Protocol, 1955, 478 UNTS 371.

16 17 UST 1270, TIAS No. 6090, 575 UNTS 159.

17 2 ICSID, Convention on the Settlement of Investment Disputes Between States and Nationals of Other States. Documents Concerning the Origin and Formulation of the Convention 428 (1968). For the travaux préparatoires of Art. 55, see id. at 177, 242, 304, 343–48, and 424–31. Cf. also the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 UST 2517, TIAS No. 6997, 330 UNTS 38. Despite the assumption to the contrary in Ipitrade International S.A. v. Federal Republic of Nigeria (465 F.Supp. 824, 826 (D.D.C. 1978)), it is doubtful whether states themselves count as the “persons . . . physical or legal” to whom the Convention applies.

18 Cf. Claim against the Empire of Iran Case (Federal Republic of Germany, Federal Constitutional Court, 1963, 16 BVerfGE 27 (1964)), 45 ILR 57, 73–75 (1972), per Wagner V.-P.

19 68 LNTS 321.

20 Treaties of the USSR with: Norway (1921), 7 LNTS 293; Austria (Ukrainian SSR also a party) (1921), 20 LNTS 153; Denmark (1923), 18 LNTS 15; Germany (1925), 53 LNTS 85; Sweden (1927), 127 BFSP 923; Greece (1929), 131 BFSP 480; Britain (1934), 137 BFSP 188; and Belgium and Luxembourg (1935), 173 LNTS 169.

21 USSR-Italy, Treaty of Commerce and Navigation, Feb. 7, 1924, 120 BFSP 659. The Treaty (Art. 3, para. 4) excludes interim attachment “in consequence” of the Trade Delegation’s assumption of responsibility for the transactions. But the Treaty is ambiguous on the question of final execution. The Corte di Cassazione interpreted the Treaty to confer absolute immunity from execution (Russian Trade Delegation in Italy v. de Castro (1935, [1935] Foro. It. I, at 240), 7 Ann. Dig. Public Int’l L. Cases [hereinafter cited as Ann. Dig.] 179, 180–82 (1940), but it is not clear that this was intended. For other Italian cases on the Trade Delegation, see 9 Ann. Dig. 247–49 (1942).

22 Treaties with: Norway, supra note 20, Art. 4(1) (a qualified undertaking only); Denmark, supra note 20, Art. 3(1) (to similar effect); Italy (see note 21); Latvia, supra note 19, Art. 5(7); Greece, supra note 20, Art. 7(4); Belgium and Luxembourg, supra note 20, Art. 14.

23 Treaty with Austria, supra note 20, Art. 12.

24 Treaties with: Norway, Art. 4(2); Denmark, Art. 3(4); both supra note 20.

25 Treaties with: Germany, supra note 20, Art. 7; Latvia, supra note 22, Art. 5(7); Sweden, supra note 20, Art. 6. The treaty with Greece, supra note 20, simply has “jouissant d’extraterritorialite”; Art. 7(5); that with Great Britain, supra note 20, “necessary for the exercise of the rights of State sovereignty or for the official functions of the diplomatic or consular representatives”; Art. 5(8). On the earlier limited Soviet-British Agreement of March 16, 1921 (114 BFSP 373), see Fenton Textile Assoc. Ltd. v. Krassin, (1922) 38 T.L.R. 259 (C.A.).

26 Those with Norway and Denmark, supra note 20.

27 e.g., U.S.-the Netherlands, Exchange of Notes concerning Nonassertion of Sovereign Immunity from Suit in respect of Air Transport Enterprises, June 19, 1953, 4 UST 1610, TIAS No. 2828, 212 UNTS 249; U.S.-Italy, Agreement on the use of Italian Ports by the N.S. Savannah, Nov. 23, 1964, 15 UST 2155, TIAS No. 5699, 532 UNTS 133, Art. VIII, para. 2.

28 e.g., U.S.-Australia, Treaty concerning Maritime Claims and Litigation, March 8, 1945, 5 Bevans 159, Art. V; U.S.–Italy, Exchange of Notes relating to the Offshore Procurement Program, March 31, 1954, 5 UST 2185, TIAS No. 3083, Art. 12(a). The latter is one of a number of similar treaties dealing with “offshore procurement.”

29 9 UST 449, TIAS No. 4024, 367 UNTS 3. The other ten treaties in force are with: Italy, Feb. 2, 1948, Art. 24(6) (TIAS No. 1965, 79 UNTS 171); Ireland, Jan. 21, 1950, Art. 15(3) (206 UNTS 269, 1 UST 785, TIAS No. 2155); Greece, Aug. 3, 1951, Art. 14(5) (224 UNTS 279, 5 UST 1829, TIAS No. 3057); Israel, Aug. 23, 1951, Art. 18(3) (5 UST 550, TIAS No. 2948, 219 UNTS 237); Denmark, Oct. 1, 1951, Art. 18(3) (12 UST 908, TIAS No. 4797, 421 UNTS 105); Japan, April 2, 1953, Art. 18(2) (4 UST 2063, TIAS No. 2863); Federal Republic of Germany, Oct. 29, 1954, Art. 18(2) (7 UST 1839, TIAS No. 3593, 273 UNTS 3); Iran, Aug. 15, 1955, Art. 11(4) (8 UST 899); the Netherlands, March 27, 1956, Art. 18(2) (8 UST 2043, TIAS No. 3942, 285 UNTS 231), and Korea, Nov. 28, 1956, Art. 18(2) (8 UST 2217, TIAS No. 3947, 302 UNTS 281). The three unratified treaties were with Uraguay, Nov. 23, 1949, Art. 18(5) (96 Cong. Rec. 375 (1950)); Colombia, April 26, 1951,Art. 18(2)(97Cong. Rec. 6500 (1951)); and Haiti, March 3, 1955. Art. 18(2) (101 Cong. Rec. 8914 (1955)).

30 Only the treaties with Italy, Ireland, and Greece do not include the term. In its amicus curiae brief in Electronic Data Systems Corp. Iran v. Social Security Organization of the Government of Iran (610 F.2d 94 (2d Cir. 1979)), the State Department stated that “It is the view of the United States that the treaty waiver [in the Iranian Treaty of 1955] does not apply to the property of the Contracting States as such and of their non–commercial agencies and instrumentalities, but that it applies only to the property of publicly owned or controlled commercial or business enterprises of the Contracting States” (cited by Stevenson, J. R. & Browne, J., United States Law of Sovereign Immunity Relating to International Financial Transactions, in International financial Law: Lending, Capital Transfers and Institutions 85, 102 (Rendell, R. S. ed. 1980)Google Scholar. If this is an accurate interpretation of the more extensive U.S. treaty provision, it shows just how limited that provision is. But earlier U.S. decisions have taken a much more sweeping view of the extent of the waiver in the Iranian Treaty, without considering the implications of the term “enterprise”: see, e.g., Irving Trust Co. v. Government of Iran, 85 F.R.D. 135 (E.D. La. 1980); Behring Int’l Inc. v. Imperial Iranian Air Force, 475 F.Supp. 383, 390 (D.N.J. 1979). In the latter case the Iranian Air Force was held, without argument, to be an “enterprise,” a most unlikely conclusion. A little more caution was shown in American Int’l Group, Inc. v. Islamic Republic of Iran (493 F.Supp. 522, 525–26 (D.D.C. 1980)), but not much, since the court treated the waiver as extending to Iran itself, as “inseparable” from its insurance enterprise. On the problem of waiver of prejudgment attachment by the treaty, see infra note 252.

31 Weber, F. A., The Foreign Sovereign Immunities Act of 1976: Its Origin, Meaning and Effect, in 3 Yale Studies in World Public Order 1, 80 n. 114 (1976)Google Scholar. Cf. 6 Whiteman, M., Digest of International Law 615 (1968)Google Scholar.

32 67 Dep’t State Bull. 595, Art. 6(2) (1972).

33 Setser, , The Immunity Waiver for State-Controlled Business Enterprises in United States Commercial Treaties, ASIL, 55 Proc. 89, 92–93, 104–05 (1961)Google Scholar.

34 By a search of the indexes to vols. 1–750 of the United Nations Treaty Series. The list is certainly not comprehensive.

35 Agreements of this kind have been made with France (1951), 221 UNTS 79; Denmark (1946), 8 UNTS 218; Japan (1957), 325 UNTS 35; Federal Republic of Germany (1958), 346 UNTS 71; Ghana (1961), 655 UNTS 171; Brazil (1963), 646 UNTS 277; and Belgium (1971), UN No. 12657, as to which see Verhoeven, , Immunity from Execution of Foreign States in Belgian Law, 10 Neth. Y.B. Int’l L. 73, 75–76 (1979)Google Scholar. The effect of the Protocol of June 14, 1961 with Togo (though it is not in this form) is similar, or even more extensive, since it allows execution against “all State property of the U.S.S.R. in Togo” without the customary qualification; 730 UNTS 187.

36 Agreements with: Italy (1948), 217 UNTS 181; Finland (1947), 217 UNTS 3; Bulgaria (1948), 217 UNTS 97; Switzerland (1948), 217 UNTS 87 (though transactions with separate state trading instrumentalities are expressly reserved); Lebanon (1954), 226 UNTS 148; Austria (1955), 24 UNTS 289; German Democratic Republic (1957), 292 UNTS 75; People’s Republic of China (1958), 313 UNTS 135; Albania (1958), 313 UNTS 261; Democratic People’s Republic of Vietnam (1958), 356 UNTS 149; Democratic People’s Republic of Korea (1960), 399 UNTS 3.

37 Agreements with: German Democratic Republic, People’s Republic of China, Albania, Democratic People’s Republic of Korea, supra note 36.

38 Agreements with: Romania (1947), 226 UNTS 79; Hungary (1947), 216 UNTS 247; Czechoslovakia (1947), 217 UNTS 3; United Arab Republic (1956), 687 UNTS 221; Iraq (1958), 328 UNTS 118; Yemen (1963), 672 UNTS 315.

39 Supra note 32.

40 673 UNTS 25.

41 [1972] Gr. Brit. TS No. 67 (Cmnd. 5008).

42 [1977] id. No. 104 (Cmnd. 7040) (in force June 15, 1977).

43 The limitations on section 10 of the State Immunity Act, 1978 (UK) required by the Protocol are effected by the State Immunity (Merchant Shipping) (U.S.S.R.) Order, 1978 (S.I. 1978, No. 1524). Somewhat similar provision is made by the USSR-Netherlands Agreement on Commercial Shipping of May 28, 1969, discussed by Voskuil, , The International Law of State Immunity, as Reflected in the Dutch Civil Law of Execution, 10 Neth. Y.B. Int’l L. 245, 266–68 (1979)Google Scholar. See also the different provisions of four merchant shipping treaties referred to by Boguslavsky, , Foreign State Immunity: Soviet Doctrine and Practice, id. at 167, 173–74 Google Scholar.

44 405 UNTS 263 (para. 3). The Notes further provide that separate Romanian commercial organizations are directly and exclusively responsible for their own transactions, “in accordance with the norms of the international Commercial Private Law” (para. 4).

45 Poland-Czechoslovakia, Treaty of Commerce, July 4, 1947, 85 UNTS 212; Japan-Czechoslovakia, Treaty of Commerce, Dec. 15, 1959, 383 UNTS 277.

46 Treaty on Trade, Nov. 24, 1953, [1954] ROLF 745, cited by Lalive, J.-F., Swiss Law and Practice in Relation to Measures of Execution against the Property of a Foreign State, 10 Neth. Y.B. Int’l L. 153, 164 (1979)Google Scholar. This agreement was maintained in force by a further agreement of May 7, 1971, [1971] ROLF 855, Art. 1. Similar agreements were made with Poland (June 25, 1949, [1949] id. at 832), Hungary (June 27, 1950, [1950] id. at 612) and Romania (Aug. 3, 1951, [1951] id. at 827). These have been replaced by new agreements to somewhat similar effect. In one case the longer formula of the earlier treaties is maintained (Hungary, Oct. 30, 1973, [1973] id. at 2661, Protocol, Art. 5), but in the three others a more abbreviated form, similar to para. 3 of Art. 13 of the Czechoslovakian Treaty, is used; Bulgaria, Nov. 23, 1972, id. at 598, Art. 9; Romania, Dec. 13, 1972, id. at 609, Exchange of Notes; Poland. June 25, 1973, id. at 1790, Art. 4. In an official comment, the Swiss authorities state that these clauses

But this does not advert to the differences between the treaty provisions of 1972–1973.

47 This survey has dealt only with treaties explicitly regulating state immunity. Many general provisions in commercial and legal cooperation treaties are capable of being interpreted as having this effect: e.g., France-Cameroon,Legal Convention, Nov. 13, 1960, 741 UNTS 119, Art. 35 (execution “in civil and commercial matters”). The same may be true of most favored-nation clauses. Whether such provisions have this effect may well depend on the general law, the object of inquiry here.

48 Supra notes 20–22 and 25.

49 Supra note 35.

50 Draft Convention III, Competence of Courts in Regard to Foreign States, 26 AJIL Supp. 451, Art. 23 (1932). Punitive orders may not be so enforced (ibid.). In addition, proceedings in rem may be instituted against state property where the state is not immune in respect of the substantive claim; Art. 13.

51 Art. 26, referring to “such juristic persons as corporations or associations for profit separately organized by or under the authority of another State, regardless of the nature and extent of governmental interest therein or control thereof.”

52 26 AJIL Supp., supra note 50, at 689–714.

53 46 Annuaire de l’institut de Droit Int’l 301–02, Art. 5 (1954). For debate, see id. at 200–20. The five resolutions adopted by the Institut are by no means explicit: proceedings against foreign states and instrumentalities are allowed “whenever the grounds of the action do not involve an act of State” (Art. 3; cf. Art. 1), but “act of State” is nowhere defined. For the travaux, see the report by Lemonon, 44 id. at 5–136 (1952). Discussions in the International Law Association have so far been inconclusive; see ILA, Report of the 45th Conference, Lucerne 210–32 (1953). The matter is again on the Association’s agenda. See also the views of the Afro-Asian Legal Consultative Committee (1960), in M. Whiteman, supra note 31, at 572–74.

54 Restatement (2d) of Foreign Relations Law of the United States §§68–69 (1965).

55 Id. at 209. For a review of authority, see id. at 215–18.

56 Report of the International Law Commission on its 31st session, 34 UN GAOR, Supp. (No. 10) 513, UN Doc. A/34/10 (1979). Cf. Reuter’s comments during the debate; [1979] 1 Y.B. Int’l Comm’n 211.

57 Sections 1609–1611 of the Act (28 U.S.C. §§1330, 1602–1611).

58 28 U.S.C. §1602.

59 Section 1610(a)(2) and (b)(2); and see the express exclusions from execution in §1611. On the execution provisions of the U.S. Act, see Delaume, , Public Debt and Sovereign Immunity: The Foreign Sovereign Immunities Act of 1976, 71 AJIL 399, 409–13 (1977)Google Scholar; del, Bianco, Execution and Attachment under the Foreign Sovereign Immunities Act of 1976, in 5 Yale Studies in World Public Order 109–46 (1978)Google Scholar; Weber, supra note 31, at 20–26, 43–45; von Mehren, R., The Foreign Sovereign Immunities Act of 1976, 17 Colum. J. Transnat’l L. 33, 61–65 (1978)Google Scholar. And cf. Note, The Problem of Execution Uniformity under the Foreign Sovereign Immunities Act of 1976 and Federal Rule of Civil Procedure 69, 12 Valparaiso U.L.R. 569 (1978). For the Act’s exclusion of prejudgment attachment, see infra note 252.

60 Section 13(3) of the Act (c. 33) provides for waiver of immunity from execution. Separate instrumentalities are only immune in respect of acts “done . . . in the exercise of sovereign authority” where the state itself would also be immune; §14(2). In that case, the execution provisions of section 13 apply. It follows that, in respect of acts done other than “in the exercise of sovereign authority,” none of the property of separate instrumentalities is entitled to immunity, irrespective of the purpose for which it is held. On the execution provisions of the 1978 Act, see Delaume, , The State Immunity Act of the United Kingdom, 73 AJIL 185, 194–99, (1979)Google Scholar; Higgins, R., Execution of State Property: United Kingdom Practice, 10 Neth. Y.B. Int’l L. 35, 47–52 (1979)Google Scholar. For the position of central banks, see infra, text to notes 234–38.

61 Supra, text to note 8.

62 388 Parl. Deb., H.L. (5th ser.), cols. 61 (Baroness Elles), 67 (Ld. Wilberforce), 70–74 (Ld. Denning) (1978).

63 Id. at col. 76 (Ld. Elwyn-Jones L.C.).

64 389 id., cols. 1501–11, 1520–30 (1978).

65 But parties to the European Convention are generally excluded, pursuant to its terms; §13(4)(a). For recognition in the United Kingdom of Convention judgments and settlements, see§§I8and 19.

66 949 Parl. Deb., H.C. (5th ser.), cols. 410–11 (Archer) (1978).

67 In personam enforcement is excluded, as are measures of specific enforcement; §13(1) and (2). For interim enforcement, see infra, text to notes 244–52. 68 See, e.g., the Italian Law No. 1263, July 15, 1926 (infra note 127). Cf. the Greek, Swiss, and Soviet legislation cited by Sucharitkul, S., State Immunities and Trading Activities in International Law 349 (1959)Google Scholar. On the Swiss wartime legislation, see also 1 Répertoire Suisse de droit international public 354–60,381–87 (1975). On the Greek law, see the decision of the Athens Court of Appeal, No. 1690 of 1949, 3 Rev. Héllenique de Droit Int’l 331 (1950). For the Yugoslav Law on Enforcement Procedure, 1978, Art. 13, see Varady, , Immunity of State Property from Execution in the Yugoslav Legal System, 10 Neth. Y.B. Int’l L. 85, 89, 94–95 (1979)Google Scholar. For the Soviet law (absolute immunity unless the Soviet state authorities order otherwise on grounds of reciprocity), see Boguslavsky, supra note 43, at 170–71.

69 With the possible exception of state–owned commercial ships; cf. the decisions of Sir Robert Phillimore in The Charkieh, (1879) L.R. 4 A. & E. 59, and The Parlement Beige, (1879) 4P.D. 129. The latter decision was reversed by the Court of Appeal ((1880) 5 P.D. 197), but on the ground that the ship there was public property of the state destined to public use.

70 For the earlier French cases, see 9 Ann. Dig. 242 (1942). Twentieth-century cases supporting a general immunity from execution include: Spanish State & Bank of Spain v. Banco de Bilbao (1937), [1938] S. Jur. II 23, 8 id. at 229 (Rouen, C.A.) (1941); Officina del Aceite v. Domenech (1938), [1939] D.P. II 65, 70, 9 id. at 239 (Aix, C.A.); Socifros v. U.S.S.R. (1938), [1939] D.P. II 65, 66, id. at 236 (Aix, C.A.); and Aget v. French State & Spanish State (1939), Gazette du Palais, June 29, 1939, Hid. at 144 (Perpignan, Civ. Trib.) (1947). To the contrary, cf. the rather strange (wartime) decision of the Civil Tribunal of the Seine, Russian Trade Delegation v. Société Francaise Industrielle et Commerciale des Pétroles (Groupe Malopolska) (1940), [1940] D. heb. 68, 9 id. at 245.

71 5 AJIL 490 (1911).

72 Enforcement of International Awards (Czechoslovakia) Case (1928), 4 Ann. Dig. 174 (1931); also reported in 64 J. Droit Int’l 394 (1937).

73 Russian Trade Delegation in Italy v. de Castro (1935), [1935] Foro It. I 240, 7 Ann. Dig. 179 (1940).

74 Brasseur et Cie v. Republic of Greece (1933), 59 J. Droit Int’l 1088 (1932), 6 Ann. Dig. 164 (1938). For other Belgian decisions to similar effect, see Verhoeven, supra note 35, at 76–77.

75 Garnishee Proceedings against Occupant (Austria) Case (1952), 19 ILR 211 (1957).

76 Weber v. U.S.S.R. (1942), 11 Ann. Dig. 140 (1947).

77 The Rigmor (1942), 37 AJIL 141 (1943), 10 Ann. Dig. 240 (1945); Russian Trade Delegation v. Carlbom (No. 2) (1944), 12 id. at 112 (1949). And see Allen, E. W., The Position of Foreign States Before National Courts 47–49 (1933)Google Scholar.

78 See Lalive, supra note 46, at 153–62.

79 Austrian Minister of Finances v. Dreyfus, 44 ATF I 49 (1918), in 1 Répertoire Suisse de droit international public 352, 353 (1975).

80 (1930), 58 BGE I 237, 5 Ann. Dig. 131 (1935).

81 (1938), 61 Semjud. 327 (1939), 10 Ann. Dig. 232, 234 (1945).

82 Applied by lower courts in two decisions reported as State Immunity (Switzerland) (No. 1) Case (1937), 37 BIZR 319 (1938), 10 Ann. Dig. 230 (cf 8 id. at 246 (1941)), and State Immunity (Switzerland) (No. 2) Case (1939–40), 39 BIZR 318 (1940), id. at 235, both decisions of the Superior Court of Zurich. The latter decision was affirmed by the Federal Tribunal.

83 (1956), 82 ATF I 75 (1956), 23 ILR 195 (1960).

84 (1960), summarized in 55 AJIL 167 (1961).

85 An unreported decision of 1966, now in 31 Annuaire Suisse de Droit Int’l 219 (1975).

86 Id. at 225.

87 (1978), 104 ATF la 367, 35 id. at 143 (1979).

88 There is no clear suggestion in the cases of a distinction between state and instrumentality assets, but cf. Lalive, supra note 46, at 156.

89 Generally see Seidl-Hohenveldern, , State Immunity: Federal Republic of Germany, in 10 Neth. Y.B. Int’l L. 55–72 (1979)CrossRefGoogle Scholar, with references to the earlier German literature.

90 Von, Hellfeld v. Russian Government, 5 AJIL 490 (1911)Google Scholar.

91 (1920), [1921] J.W. 773, 1 Ann. Dig. 114 (1932).

92 1 Ann. Dig. at 115. And see The Ice King (1921), id. at 150 (Reichsgericht).

93 No. 129 in Die deutsche Rechtsprechung auf dem Gebiete des Internationalen Privatrechts im Jahre 1971, at 389–93 (1973).

94 Non-resident Petitioner v. Central Bank of Nigeria (Decision of Dec. 2, 1975), 16 ILM 501, 503 (1977) (emphasis supplied).

95 In re Republic of the Philippines, 46 BVerfGE 342 (1977), reprinted in 38 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht [ZaöRV] 242 (1978); for a summary, see 73 AJIL 295, 305, 703 (1979).

96 38 ZaöRV at 275.

97 Id. at 279–83. Cf. at p. 282:

Authentication of the diplomatic purposes of the account by the defendant state would be conclusive (ibid.). For further comment, see infra note 229.

98 See also Paulsson, , Sovereign Immunity from Execution in France, 11 Int’l Law. 673 (1977)Google Scholar.

99 U.S.S.R. v. Association France Export (1929), [1930] S. Jur. 149, 5 Ann. Dig. 18 (1935), 56 J. Droit Int’l 1042 (1929), where the Cour de Cassation held that the Soviet Trade Delegation’s activities-were only “acts of commerce entirely distinct from the principle of State sovereignty,” and allowed an interim attachment against the delegation’s assets.

100 See cases cited at note 70 supra. On the earlier case law, see also 3 Répertoire de la pratique française en matière de droit international public 191, 206, 2 1 0 – 1 2 , 235 (1965).

101 (1946), 73–76 J. Droit Int’l 1 (1952).

102 Id. at 3. Cf. the not dissimilar issue at stake (in the context of domestic state immunity) in Bank voor Sheepvaart en Handel v. Administrator of Hungarian Property, [1954] A.C. 584 (which went the other way).

103 The Cour de Cassation has been criticized for allowing execution against a general governmental account; even if the government was acting as Robertson’s agent, the funds were not segregated. See Castel, , Immunity of a Foreign State from Execution: French Practice, 46 AJIL 520, 524–25 (1952)Google Scholar. The criticism does not seem warranted. The Court stressed that the money was held in a special account “au profit de Robertson” pursuant to specific agreements with creditors to this effect. At least, the funds seem to have been distinctly traceable.

104 Rossignol c. Etat Tchecoslovaque (1949), 73–76 J. Droit Int’l 4, 5 (1952) (where the Tribunal Civil de la Seine held that immunity from execution extended to real property within the jurisdiction, the subject of the action, even though it was used for private law purposes); Soc. Bauer-Marchal et Cie. c. Ministre de Finances de Turquie (1965), 54 Rev. Critique Droit Int’l Privé 565 (1965) (where the Court of Appeal of Rouen held the Turkish Minister of Finances immune from interim and final attachment of funds in an action on Ottoman bonds; see the critical note by Y.L., id. at 568).

105 In République sociale fédérate de Yugoslavie c. Société européenne d’études et d’entreprises (1971) (98 J. Droit Int’l 131 (1971)), the Tribunal de Grande Instance de Paris, acting ex parte, pointed out that waiver of immunity from jurisdiction did not entail waiver of immunity from execution, but granted exequatur to an arbitral award on the basis that this was merely a preliminary to execution, not execution itself (at pp. 132–33). The decision was affirmed on appeal (Paris, Cour d’appel, 1975) (103 id. at 136 (1976)), but overturned on other grounds by the Cour de Cassation (June 14, 1977) (105 id. at 864 (1978)). Neither court referred to the immunity from execution point.

106 (1966), 93 J. Droit Int’l 846 (1966), 47 ILR 157 (1974).

107 (1969), 96 J. Droit Int’l 923 (1969) (but see Kahn’s criticism, id. at 924–27).

108 (1971), 99 id. at 267 (1972), aff’g the Paris Court of Appeal (1969), 74 Rev. Générale Droit Int’l Public 522 (1970), 52 ILR 310 (1979).

109 P. Lagarde, cited by Paulsson, supra note 98, at 677.

110 A third possibility, suggested by Bourel (67 Rev. Critique Droit Int’l Privé 534, 538 (1978)), is that the Court applied a “practical disturbance” rule, according immunity on the basis that the attachment would seriously affect the foreign state and thus endanger the forum state’s relations with it. It is difficult to see how a court could judge such matters, or why a principle of immunity should depend on the susceptibility of the particular defendant. For rejection of a somewhat similar argument, see the Philippines decision of the Federal Constitutional Court, 38 ZaöRV at 284.

111 The decision of the Tribunal de Grande Instance of Paris in Braden Copper Co. c. Groupement d’Importation des Métaux (1972, 12 ILM 182 (1973)) does not help to clarify the problem. The court allowed an interim attachment of funds of the Chilean Copper Corp. (a separate state instrumentality), but reserved the question of final execution (id. at 189). See also Paulsson, supra note 98, at 677–79.

112 Decision of Dec. 7, 1977, 67 Rev. Critique Droit Int’l Privé 532 (1978).

113 P. Bourel, id. at 536–39.

114 This is not inconsistent with a theory of functional immunity (cf. the decision of the Cour de Cassation of May 19, 1976, Blagojevic c. Banque du Japon, 66 id. at 359 (1977)), but it does depend on a degree of personalization of instrumentalities also criticized by Bourel.

115 (1979), 106 J. Droit Int’l 857 (1979).

116 Id. at 859.

117 Id. at 861.

118 Libya and its Central Bank claimed absolute immunity from execution. Libya also vigorously protested to France against the attachments, as the tribunal noted; id. at 860.

119 Cabolent, H. V. v. National Iranian Oil Co. (1968), 9 ILM 152 (1970)Google Scholar. For an Iranian case (1963) arising from the award here, see id. at 1118. The decision perhaps assumes absolute immunity, but the reasoning is expressed to be on other grounds.

120 Société Européenne d’Etudes et d’Entreprises v. Socialist Federal Republic of Yugoslavia (Sup. Ct. 1973), in 5 Neth. Y.B. Int’l L. 290 (1974), aff’g Hague C.A., 4 id. at 390 (1973). See further Kingdom of Morocco v. Stichting Revaliditie Centrum “de Trappenberg” (Amsterdam D.C. 1978), 10 id. at 444–45 (1979); Voskuil, supra note 43, at 270–89.

121 (1951), 18 ILR 3 (1957). For earlier cases, see supra note 74.

122 Id. at 6. See also Suy, , Immunity of States before Belgian Courts and Tribunals, 27 ZaöRV 660, 684–92 (1967)Google Scholar; de Visscher, P. & Verhoeven, J., L’Immunité de juridiction de l’Etat étranger dans la jurisprudence beige et le projet de convention du Conseil de l’Europe, in L’Immunité de juridiction et d’exécution des Etats. A propos du projet de convention du conseil de l’Europe. Actes du colloque 35–71 (Bruxelles, Institut de Sociologie, 1971)Google Scholar; Verhoeven, supra note 35.

123 Cf. Bachrach, , Sovereign Immunity in Belgium, 10 Int’l Law. 459, 465 (1976)Google Scholar.

124 See Szczesniak v. Backer et consorts, [1957] Pasicrisie beige II, at 38 (Brussels C.A.); N. V. Filmpartners, [1971] id. III, at 80; Université nationale de Zaïre v. Vigneron et S.A. Banque belgo-congolaise, [1975] id. III, at 1. Verhoeven, supra note 35, at 84, concludes that “recent decisions tend to limit immunity to property intended for use in the general interest, although it is too early to draw definite conclusions from isolated judgments.”

125 Soviet Distillery in Austria Case (1954), 9 VwGH(F) 5 (1954), 21 ILR 101 (1957). This followed Dralle v. Republic of Czechoslovakia (1950) (5 ÖJZ 341 (1950), 17 ILR 155 (1956)), reestablishing for Austrian courts the principle of restrictive immunity from jurisdiction. But cf. the decision of the District Court of Appeal of Vienna in the Garnishee Proceedings against Occupant (Austria) Case (1952) (8 ÖJZ 21(1953), 19 ILR 211 (1957)), apparently holding that restrictive immunity was not applicable to proceedings for the execution of judgments.

126 Decision of Aug. 6, 1958, cited by Seidl-Hohenveldern, , State Immunity: Austria, in 10 Neth. Y.B. Int’l L. 97, 107–08 (1979)Google Scholar. To similar effect is a dictum of the Supreme Court in a decision of Feb. 10, 1961; 84 JB 43 (1962), 40 ILR 73, 78 (1970).

127 Amministrazione del Governo brittanico, Republico Ministero, Commune di Venezia c. Guerrato (decision of July 4, 1963), in 46 Rivista diritto intern azionale 451, 456 (1963). For the 1959 decision of the Tribunal of Venice referring the matter to the Corte Costituzionale, see 28 ILR 156 (1963). See further Condorelli & Sbolci, , Measures of Execution against the Property of Foreign States: The Law and Practice in Italy, 10 Neth. Y.B. Int’l L. 197 (1979)CrossRefGoogle Scholar; Gori-Montanelli & Botwinik, , Sovereign Immunity—Italy, 10 Int’l Law. 451 (1976)Google Scholar. On the reciprocity requirement under the 1926 law, see Condorelli & Sbolci, supra, at 218–23; Bernardini, , La Reciprocità rispecto agli atti Executive e Cautelari contro Stall esteri, 43 Rivista Diritto Internazionale 449 (1960)Google Scholar.

128 Condorelli & Sbolci, supra note 127, at 224–28. For example, a decree of March 3, 1978 certifies reciprocity in relation to the United States without mentioning the Act of 1976! See the Note by Sbolci, 61 Rivista Diritto Internazionale 949 (1978); Condorelli & Sbolci, supra, at 218, 223.

129 Supra, text to notes 57–59.

130 See especially Smit, , The Foreign Sovereign Immunities Act of 1976: A Plea for Drastic Surgery, ASIL, 74 Proc. 49 (1980)Google Scholar; Brower, Bistline, & Loomis, , The Foreign Sovereign Immunities Act of 1976 in Practice, 73 AJIL 200 (1979)CrossRefGoogle Scholar.

131 The Schooner Exchange v. M’Faddon, 11 U.S. 116 (7 Cranch) (1812); Berizzi Bros. v. S.S. Pesaro, 271 U.S. 1088 (1926).

132 e.g., Ex parte Republic of Peru, 318 U.S. 578 (1943).

133 Dexter & Carpenter, Inc. v. Kunglig Jarnvagsstyrelsen, 43 F.2d 705 (2d. Cir. 1930). Also affirming immunity from execution, Bradford v. Chase Nat’l Bank, 24 F.Supp. 28 (S.D.N.Y. 1938). On the Dexter & Carpenter case, see Bishop, , International Law—Sovereign Immunity — Waiver—Execution, 29 Mich. L.R. 894 (1931)Google Scholar; Jessup & Deák, , Dexter & Carpenter, Inc. v. Kunglig Jarnvagsstyrelsen et al., 25 AJIL 335 (1931)CrossRefGoogle Scholar; Kuhn, , Immunity of the Property of Foreign States against Execution, 28 id. at 119 (1934)Google Scholar.

134 Cases of “ingenuity” included: Mexico v. Rask, 118 Cal. App. 21 (1931) (possessery lien over Mexican patrol boat for repairs allowed); Lamont v. Travellers Insurance Co., 281 N.Y. 362 (1938) (distribution of fund between private parties; held, Mexican claim to fund did not preclude distribution unless fund shown to be held for Mexico rather than bondholders); National City Bank of New York v. Republic of China, 348 U.S. 356 (1954) (unrelated counterclaim against Government allowed).

135 26 Dep’t State Bull. 984 (1952).

136 132 F.Supp. 684 (S.D.N.Y. 1955); noted by Zilber, , International Law—Sovereign Immunity— Seizure of Property under Restrictive Immunity Doctrine, 54 Mich. L.R. 1008 (1956)CrossRefGoogle Scholar. Metzger, , Immunity of Foreign State Property from Attachment of Execution in the USA, in 10 Neth. Y.B. Int’l L. 131, 136 (1979)Google Scholar, criticizes the State Department, which “erroneously supposed” immunity from execution to be a rule of international law.

137 192 N.Y.S. 2d 469 (1959), and see M. Whiteman, supra note 31, at 709–26; Griffin, , Execution against the Foreign Sovereign’s Property: The Current Scene, ASIL, 55 Proc. 105 (1961)Google Scholar; Delson, , Applicability of Restrictive Theory of Sovereign Immunity to Actions to Perfect Attachment, id. at 121 Google Scholar.

138 See Loomis v. Rogers, 254 F.2d 941, cert, denied, 359 U.S. 928 (1958) (rule described as “well-established”); Et Ve Balik Kurumu v. B. N. S. Int’l Sales Corp., 204 N.Y.S.2d 971, 980–82 (1960); Stephen v. Zivnosenska Banka, Nat’l Corp., 222 N.Y.S.2d 128 (1961), aff’d, 235 N.Y.S.2d 1 (1962); State of Florida, ex rel. National Inst, of Agrarian Reform v. Dekle, 137 So.2d 581 (1962); National Inst, of Agrarian Reform v. Kane, 153 So.2d (1963); Hellenic Lines Ltd. v. Embassy of South Viet Nam, Commercial Div., 275 F.Supp. 860 (S.D.N.Y. 1967); New York World’s Fair 1964–1965 Corp. v. Republic of Guinea, 159 N.Y.L.J. 15 (1968), summarized in 63 AJIL 343 (1969) (immunity granted notwithstanding contrary State Department suggestion).

139 United States v. Harris & Co. Advertising Inc., 149 So.2d 384 (1963).

140 Fiota Maritima Browning de Cuba S.A. v. M. V. Ciudad de la Habana, 335 F.2d 619 (4th Cir. 1964), aff’g 218 F.Supp. 938 (D. Md. 1963). Cf. also Three Stars Trading Co. v. Republic of Cuba, 222 N.Y.S.2d 675 (1961) (warrant of attachment of debts issued to obtain jurisdiction; question of immunity deferred); Stephen v. Zivnosenska Banka, Nat’l Corp., 222 N.Y.S.2d 128 (1961) (attachment maintained pending judicial determination of ownership of disputed property).

141 See cases cited infra at note 197.

142 See cases cited supra at note 30 and infra at note 218.

143 See cases cited infra at note 252.

144 Jet Line Services Inc. v. M/V Marsa el Hariga, 462 F.Supp. 1165 (D. Md. 1978); Geveke & Co. Int’l, Inc. v. Kompania Di Awa I Elektrisidat Di Korsou N.V., 482 F.Supp. 660 (S.D.N.Y. 1979).

145 Smit, supra note 130, at 64–66.

146 For execution against mixed funds, see infra, text to notes 227–33.

147 As to the former, see Lariviere v. Morgan, (1872) L.R. 7 Ch. App. 550, aff’d, (1875) L.R. 7 H.L. 423. As to the latter, Juan Ysmael & Co. Inc. v. Government of the Republic of Indonesia, [1955] A.C. 72 (P.C.).

148 [1938] A.C. 485, 490. Among earlier decisions, see the cases cited supra at note 69. And see Higgins, supra note 60, at 35–41.

149 That a separate waiver from execution was required was established for the (cognate) law of diplomatic immunity by In re Suarez, [1917] 2 Ch. 131. Submission as a defendant was held not to amount to waiver of immunity with respect to property involved in the action; Vavasseur v. Krupp, (1878) 9 Ch. D. 351. Cf. also South African Republic v. La Compagnie France-Beige du Chemin de Fer du Nord, [1898] 1 Ch. 190. In Duff Development Co. v. Government of Kelantan ([1924] A.C. 797), consent to arbitration was held not to constitute a waiver of immunity from the jurisdiction of the courts to enforce the resulting award: the House of Lords left open the position of an execution pursuant to a submission to the jurisdiction of the courts (see per Viscount Cave at 810; Viscount Finlay at 819; Lord Dunedin at 821; Lord Sumner at 830). Lord Carson dissented on the point (at 834–35). In Compania Naviera Vascongado v. S.S. Cristina ([1938] A.C. 485, 517), Lord Maugham described the point as “not yet settled.” But it is likely to have been decided in the same way as In re Suarez (subject, of course, to interpretation of the terms of the waiver or submission).

150 U.S.A. v. Dollfus Mieg et Cie S.A., [1951] 1 All E.R. 572.

151 Compania Naviera Vascongado v. S.S. Cristina, [1938] A.C. 485, in which Lords Thankerton (at 496), Macmillan (at 498) and Maugham (at 519–23) reserved the correctness of The Porto Alexandre, [1920] P. 30, to that effect. Lords Atkin (at 490) and Wright (at 512) thought the matter settled.

152 [1976] 2 W.L.R. 214, [1976] 1 All E.R. 78, [1977] A.C. 373, noted 47 Brit. Y.B. Int’l L. 365 (1974–75). The decision was followed by Robert Goff, J. in 1° Congreso del Partido, [1978]Google Scholar 1 All E.R. 1169, [1978] Q.B. 500. Neither in England nor in Commonwealth jurisdictions where Privy Council decisions are applied, therefore, is The Porto Alexandre ([1920] P. 30) still good law.

153 [1977] W.L.R. 356, [1977] 1 All E.R. 881, [1977] Q.B. 529, noted in 48 Brit. Y.B. Int’l L. 353 (1976–77).

154 On the Mareva injunction, see infra note 249.

155 [1977] Q.B. at 572.

156 Id. at 561.

157 Id. at 580.

158 Id. at 572.

159 Higgins, supra note 60, at 41.

160 [1979] 2 Lloyd’s L.R. 277. See further infra, text to notes 234–38.

161 Donaldson J. at first instance in Uganda Co. (Holdings) Ltd. v. Government of Uganda ([ 1979] 1 Lloyd’s L.R. 481) rejected Trendtex as per incuriam, though for reasons that are not entirely convincing (cf. 50 Brit. Y.B. Int’l L. 218 (1979)); Higgins, , The Death Throes of Absolute Immunity: The Government of Uganda Before the English Courts, 73 AJIL 465 (1979)CrossRefGoogle Scholar. The Court of Appeal rejected his decision, so far as it was based on this point, in Hispano Americana Mercantil S.A. v. Central Bank of Nigeria ([1979] 2 Lloyd’s L.R. 277). And cf. Planmount v. Republic of Zaire ([1980] 2 id. 393). If Lord Wilberforce’s comments are representative of i he views of his fellow Lords of Appeal, the House of Lords would not have overruled the Trendtex case; see International Law Association, State Immunity: Law and Practice in the United States and Europe (Proceedings of Conference held on November 17, 1978) at 25. Unfortunately, both Trendtex and Hispano Americana were settled before reaching the House of Lords.

162 The Quebec decision is Zodiak Int’l Products Inc. v. Polish People’s Republic, 81 D.L.R.3d 656 (1977) (in which no question of execution arose). The other Canadian cases are Flot;i Maritima Browning de Cuba S.A. v. Republic of Cuba, [1962] Can. S. Ct. 598; Government of the Democratic Republic of the Congo v. Venne, 22 D.L.R.3d 699 (1972); Harold W. M. Smith v. U.S. Securities and Exchange Commission, (1976) 12 Ont.2d 244 (though in all three, the transaction was held to be immune).

163 The cases are Inter Science Research and Development Services (Pty.) Ltd. v. Republics Popular de Mocambique, [1980] 2 S. Af. L.R. 111 (T.P.D.), per Margo J. at 124–25, followed by the Eastern Cape Division in Kaffraria Property Co. (Pty.) Ltd. v. Government of the Republic of Zambia, [1980] 2 S. Af. L.R. 709. This is in line with earlier South African dicta. see Lendalease Finance Co. (Pty.) Ltd. v. Corporation de Mercadeo Agricola, [1976] 4 S.A. 464 (A.); Prantice Shaw & Schiess Inc. v. Government of the Republic of Bolivia, [1978] 3 S.A. 938 (T).

164 Since this article was written, this assessment has been confirmed by the House of Lords in 1° Congreso del Partido ([1981] 3 W.L.R. 328). There have been no substantive decisions reported so far on the 1978 Act (which is not retrospective). On the position of central banks under the Act, see infra, text to notes 234–38. For interim injunctions, see infra note 251.

165 Egyptian Delta Rice Mills Co. v. Comisaria General de Abastecimentos y Transportes de Madrid (1943), 55 Bull. Leg. & Jur. Egypt. 114 (1942–1943), 12 Ann. Dig. 103 (1949) Cf. also the dicta to this effect of the same court in a case in 1951, cited by Lalive, J.-F., L’Immunité de juridiction des Etats et des organisations intemationales, 84 Recueil des Cours 205, 278 (1953 III)Google Scholar.

166 Government of Peru v. S.A. Sociedad Industria Financiera Argentina SIFAR (1958), 240 F. Corte Suprema 93, 26 ILR 195 (1963).

167 See Matsuyama & Sano v. Republic of China (1928), 7 Dai-han Minroku 1128; and Kirobe, , Immunity of State Property: Japanese Practice, 10 Neth. Y.B. Int’l L. 233, 233–39 (1979)Google Scholar. He predicts that Japanese courts would now permit “the exercise of jurisdiction if the case related to commercial activities” (at p. 244).

168 There have been no decisions of Thai courts, but Sucharitkul suggests that they would adopt a rule of restrictive immunity at least from jurisdiction; Sucharitkul, , Immunity from Attachment and Execution of the Property of Foreign States: Thai Practice, 10 Neth. Y.B. Int’l L. 143 (1979)CrossRefGoogle Scholar; also in 22 Malaya L. Rev. 185 (1980).

169 Statute of the International Court of Justice, Art. 38(1)(d) (a position shared with decisions of international courts and tribunals).

170 Note that Sucharitkul, the ILC’s special rapporteur on Jurisdictional Immunities of Foreign States and Their Property, treats municipal decisions as synonymous with “State practice”; see, e.g., his Second Report, UN Doc. A/CN.4/331, at 17 (1980).

171 e.g., the Libyan protest in the LIAMCO case (supra note 118), and the U.S. protest at the seizure of Marshall Plan funds in the Socobelge case (Bachrach, supra note 123). Cf. also the observations of the West German Government before the Federal Constitutional Court in the Philippines case, 38 ZaöRV 251 (1978). But the Government nonetheless concluded that only restrictive immunity from execution was required; id. at 251–52.

172 Supra, text to note 66.

173 Supra, text to notes 19–26, 34–43. And see Boguslavsky, supra note 43, who does not mention the contrary treaty practice.

174 For earlier Swiss practice, see 1 Répertoire Suisse de droit international public 340–436 (1975) (covering the years 1914–1939). The modern Swiss view (restrictive immunity from execution) is stated in a Government opinion of 1976, published in 33 Annuaire suisse de droit international 163 (1977). On UK practice, see Higgins, supra note 60, at 52–54. The position of Eastern European states is interesting in this context. Yugoslavia seems to favor absolute immunity from execution (as distinct from jurisdiction), but this is subject to reciprocity, and in any event the point is not clear; Varady, supra note 68, at 91–95. The German Democratic Republic clearly does support absolute immunity in principle, but this is mitigated by a marked manipulation of waiver, especially in the case of separate instrumentalities but also of immunity from execution; Enderlein, F., The Immunity of State Property from Foreign Jurisdiction and Execution: Doctrine and Practice of the German Democratic Republic, 10 Neth. Y.B. Int’l L. 125 (1979)Google Scholar.

175 Apart from works already cited, writers in favor of restricted immunity from execution include: Van, Praag, La Question de l’immunité de juridiction des Etats étrangers et celle de la posubilite de l’exécution des jugements qui les condamnent, 16 Rev. Droit Int’l & Legislation Comparee 100, 129–37 (1935)Google Scholar; Lauterpacht, H., The Problem of jurisdictional immunities of foreign States, in 3 Collected Papers 315, 318, 338–40 (1951)Google Scholar; García-Mora, , The Doctrine of Sovereign Immunity of States andits Recent Modifications, 42 Va. L. Rev. 335, 354–59 (1956)Google Scholar; Note, Sovereign Immunity — Waiver and Execution: Arguments from Continental Jurisprudence, 74 Yale L.J. 887–918 (1965); Note, Collection of a Foreign Nation Debt by Attachment of an International Bank Loan, 69 Colum. L. Rev. 886 (1969) (though the argument must be regarded as extremely doubtful in relation to IBRD loans); Venneman, L’Immunité d’exécution de l’Etat étranger, in L’Immunité de Juridiction et d’exécution des Etats, supra note 122, at 119; Dumon, id. at 181; Ripple, Sovereign Immunity vs. Execution of Judgment: A Need to Reappraise our National Policy, 13 Boston C. Indus. & Com. L. Rev. 369 (1971); Triggs, , Restrictive Sovereign Immunity: The State as International Trader, 53 Austl. L. J., pt. I, 244, pt. II, 296, 299–301 (1979)Google Scholar; Bouchez, , The Nature and Scope of State Immunity from Jurisdiction and Execution, 10 Neth. Y.B. Int’l L. 3, 17–32 (1979)Google Scholar. Cf. also Schroer, , On the Application of State Immunity from Enforcement Measures to International Organizations, 30 Rev. Egyptienne Droit Int’l 76 (1974)Google Scholar. For a survey of earlier practice relating to real property, see Loewenfeld, E., Some Legal Aspects of the Immunity of State Property, Grotius Soc’y, 34 Trans. 111 (1949)Google Scholar.

176 E.g., I. Brownlie, supra note 8, at 343–44; Lalive, supra note 165, at 272–81 (though favorable to the developing restrictive rule). In his standard monograph (supra note 68, at 347–50), Sucharitkul seems to favor restrictive immunity from execution; but cf the cursory and negative treatment in Immunities of Foreign States before National Authorities, 149 Recueil des Cours 87, 122–23 (1976 I). Cf. also sources cited supra at note 167.

177 To this effect, Freyria, , Les Limites de l’Immunité de juridiction et d’exécution des Etats étrangers, 40 Rev. Critique Droit Int’l Privé 449, 465–69 (1951)Google Scholar (with hesitation); Johnson, D. H. N., The puzzle of sovereign immunity, 6 Austl. Y.B. Int’l L. 1, 2–3 (1974–75)Google Scholar; Note, Execution of Judgments against the Property of Foreign States, 44 Harv. L. Rev. 963 (1931); Boguslavsky, supra note 43, at 167–71 (with references to other Soviet literature).

178 Cf. 2 O’Connell, D. P., International Law 602–03 (2d ed. 1970)Google Scholar. Similarly, Mann, F. A., The Doctrine of Jurisdiction in International Law (1964)Google Scholar, in Studies in International Law 1 (1973), distinguishes “legislative” from “enforcement” jurisdiction.

179 Sucharitkul, Second Report, supra note 156, at 12. The same is true, of course, for diplomatic and other immunities.

180 Some judgments also have a law-prescribing effect, but for present purposes this is subsidiary.

181 North Sea Continental Shelf Cases, [1969] ICJ Rep. 3, 29–32.

182 See, e.g., Claim against the Empire of Iran Case (1963), 16 BVerfGE 27 (1964), 45 ILR 57, 80 (1972); repeated by the German Federal Constitutional Court in its Philippines decision of Dec. 13, 1977, 38 ZAORV at 278, where the Court stated that “the classification of a State’s function (according to the legal nature of the act) as governmental or non-governmental must be determined according to current domestic law, as international law does not, as a rule, include criteria for such a delineation.” Similarly, Article 3 of the resolution of the Institut de Droit International (supra note 53) stated that “la question de savoir si un acte n’est pas de puissance publique relève de la lex fori.” And cf. Seidl-Hohenveldern, supra note 89, at 65–66.

183 I. Brownlie, supra note 8, at 330–31 and references. Similarly, Ushakov, [1979] 1 Y.B. Int’l L. Comm’n, at 213.

184 As Condorelli and Sbolci amply demonstrate in their analysis of practice under the Italian law of 1926; supra note 127, at 218–23, 230–31.

185 The approach was advocated by Lauterpacht in 1951 (supra note 175, at 315–73), but has been generally rejected. A rule of reciprocity would be no better since it would not avoid the need for an initial or underlying approach. Cf. I. Brownlie, supra note 8, at 340.

186 For a recent critique of the distinction in English law generally, see Harlow, , “Public” and “Private” Law: Definition without Distinction, 43 Mod. L. Rev. 241 (1980)CrossRefGoogle Scholar.

187 But Sucharitkul, in his Second Report, proposes a (circular) definition of “trading or commercial activity”; supra note 170, at 14, 16.

188 It is accepted that the forum may accord a more extensive immunity than that required—even an absolute or general immunity. It would not be a denial of justice to refer a private litigant, in cases involving a foreign state, to the courts of the foreign state or to another forum with a closer connection to the transaction. In this sense, state immunity is a lex specialis to the lex generate of the minimum standard of treatment in municipal courts.

189 Described by the International Court in the Western Sahara Advisory Opinion ([1975] ICJ Rep. 12, 23) as a “fundamental rule, repeatedly reaffirmed in the Court’s jurisprudence.”

190 This rule only protects states (or their agents or organs). There is no prohibition preventing a municipal court, if it has access to international law, from applying it to determine questions arising between private parties.

191 For an example of this category, cf. Buck v. Attorney-General, [1965] Ch. 745. To similar effect is the reference to the principle of permanent sovereignty over natural resources, in International Ass’n of Machinists & Aerospace Workers v. Organization of Petroleum Exporting Countries, 477 F.Supp. 553 (CD. Cal. 1979): “In determining whether the activities of the OPEC members are governmental or commercial in nature, the court can and should examine the standards recognized under international law. . . .” See Lagod, Note, 13 Vand. J. Transnat’l L. 835 (1980).

192 I. Brownlie, supra note 8, at 324, 333. And see generally the discussion at 321–44, to which the writer is indebted.

193 Cf. Akehurst, , Jurisdiction in International Law, 46 Brit. Y.B. Int’l L. 145, 170–77 (1972– 73)Google Scholar, with Mann, supra note 164, at 127 ff. But Akehurst seems to concede (at p. 177) that state immunity cases may constitute an exception to his suggested rule that there is no international law limit on the exercise of civil jurisdiction. In addition to the authorities cited by Akehurst, see I. Brownlie, supra note 8, at 298–99; Henkin, L., Pugh, R. C., Schachter, O., & Smit, H., International Law 420–25 (2d ed. 1980)Google Scholar, agreeing with Mann and Akehurst, respectively. And for a recent U.S. restatement, see Zenith Radio Corp. v. Matsushita Electric Indus. Co., Ltd., 494 F.Supp. 1161 (E.D. Pa. 1980).

194 Supra note 7.

195 See supra note 46, and text to notes 79–88. On this problem, see also Lalive, supra note 46, at 162–64. On the position in the Federal Republic of Germany, see Seidl-Hohenveldern, supra note 89, at 71–72.

196 See, e.g., Reese, , Legislative Jurisdiction, 78 Colum. L. Rev. 1587 (1978)CrossRefGoogle Scholar.

197 Verlinden B.V. v. Central Bank of Nigeria, 488 F.Supp. 1284, 1295–96 (S.D.N.Y. 1980). The court went on to hold that the “direct effect” limb of section 1605(2) required a substantial direct effect not present on the facts; id. at 1297–1300. A large number of cases have dealt with these jurisdictional requirements, with rather divergent results. Thus, failure to compensate the U.S. owner of property expropriated in Iran was held a direct effect (American Int’l Group v. Islamic Republic of Iran, 493 F.Supp. 522 (D.D.C. 1980)); as was the injury to plaintiff’s reputation of a libel printed in the USSR and published in the United States without the defendant’s knowledge or control (Yessenin-Volpin v. Novosti Press Agency, 443 F.Supp. 849 (S.D.N.Y. 1978)). But cf. Upton v. Empire of Iran, 459 F.Supp. 264 (S.D.N.Y. 1978), aff’d, 607 F.2d 494 (1979); Harris v. VAO Intourist, Moscow, 481 F.Supp. 1056 (E.D.N.Y. 1979) (consequences of injuries suffered to U.S. citizens abroad not “direct”). And see also: Carey v. National Oil Corp., 453 F.Supp. 1097 (S.D.N.Y. 1978), aff’d, 592 F.2d 673 (2d Cir. 1979); East Europe Domestic Int’l Sales Corp. v. Terra, 467 F.Supp. 383 (S.D.N.Y. 1979); Waukesha Engine Div., Dresser Americas, Inc. v. Banco Nacional de Fomento Cooperative 485 F.Supp. 490 (E.D. Wis. 1980); Paterson, Zochonis (U.K.) Ltd. v. Compania United Arrow, S.A., 493 F.Supp. 621 (S.D.N.Y. 1980); T. P. Gonzalez Corp. v. Consejo Nacional de Production de Costa Rica, 614 F.2d 1247 (9th Cir. 1980); Decor by Nikkei Int’l, Inc. v. Federal Republic of Nigeria, 497 F.Supp. 893 (S.D.N.Y. 1980).

198 See also §9 (arbitrations). And cf. Higgins, supra note 60, at 41–46 for the legislative history of §3(1)(a).

199 A connection requirement was formulated by Lord Denning in Rahimtoola v. Nizam of Hyderabad ([1958] A.C. 379, 422), and applied by him in Thai-Europe Tapioca Service Ltd. v. Government of Pakistan ([1975] 1 W.L.R. 1485) (decided by Lawton and Scarman LJJ. on grounds of general immunity). But in 1° Congreso del Partido ([1978] Q.B. 500), Robert Goff J. thought that there was “no international consensus on the requirement of territorial connexion,” at least with respect to the “arrest of an ordinary trading ship” (at pp. 534–35). On this point the Court of Appeal agreed ([1980] 1 Lloyd’s L.R. 23, 30, per Lord Denning M.R.). It does not, of course, follow that a court will necessarily exercise this jurisdiction, if it holds that it is forum non conveniens; The Jupiter (No. 2), [1925] P. 69; The Atlantic Star, [1974] A.C. 436.

200 The problem was identified by O’Connell in ILA, supra note 161, at 13, a passage cited by Waller L.J. in 1° Congreso del Partido ([1979] 2 Lloyd’s L.R. at 584). It is exemplified by the facts of Letelier v. Chile (488 F.Supp. 665 (D.D.C. 1980)). Cf. also Perez v. The Bahamas, 482 F.Supp. 1208 (D.D.C. 1980) (the incident referred to by O’Connell).

201 Excluded for present purposes are questions of seizure of state property in time of war, and related issues of reprisals and sanctions. It was on the basis of reprisal that the court in New England Merchants Nat’l Bank v. Iran Power Generation and Transmission Co., etal. (502 F.Supp. 120 (S.D.N.Y. 1980), 19 ILM 1298, 1312–27 (1980)) acted in allowing prejudgment attachment of Iranian assets. Contra, E.-Systems Inc. v. Islamic Republic of Iran, 491 F.Supp. 1294, 1302–03 (N.D. Tex. 1980).

202 Supra notes 25 and 35.

203 Supra, text to notes 50–56.

204 Supra, text to notes 57–68.

205 Supra, text to notes 69–128.

206 Supra, text to notes 175–77.

207 As the Privy Council conceded in The Philippine Admiral, [1977] A.C. at 402–03.

208 Supra, text to notes 8–11 and 41–43.

209 Vienna Convention on Diplomatic Relations, 1961, 500 UNTS 95, Art. 31; Vienna Convention on Consular Relations, 1963, 596 UNTS 262, Art. 43. On the position of a foreign head of state, cf. 7 British Digest of International Law 96–120 (1965); State Immunity Act, 1978 (UK), §20.

210 Supra note 149.

211 28 U.S.C. §1610(a)(1) and (b)(1). Unlike waiver of immunity from prejudgment attachment, this waiver may be implied. But the Act, in distinguishing waiver of jurisdictional immunity from waiver of immunity from execution, does not encourage the argument that the former entails or implies the latter. Nonetheless, in Birch Shipping Corp. v. Embassy of Tanzania (Misc. No. 80–247 (D.D.C., Nov. 18, 1980)) it was held that submission to arbitration in the United States entailed waiver of immunity from execution of the resulting award.

212 Section 13(3).

213 Supra note 7, Art. 23.

214 Vienna Convention on Diplomatic Relations, supra note 209, Art. 32(4); Vienna Convention on Consular Relations, supra note 209, Art. 45(4).

215 Sucharitkul, supra note 170, at 15. Despite its caution, the passage suggests an approach to immunity from execution consistent with that advocated here.

216 Bouchez, supra note 175, at 21–25 agrees, though he is critical of the rule. Earlier accounts of waiver include Dickinson, , Waiver of State Immunity, 19 AJIL 555 (1925)CrossRefGoogle Scholar; Waring, , Waiver of Sovereign Immunity, 6 Harv. Int’l L. Club J. 189 (1964–65)Google Scholar.

217 Cf. Enderlein, supra note 174.

218 As Weinstein D.J. said in Harris v. VAO Intourist Moscow (481 F.Supp. 1056, 1058(E.D.N.Y. 1979)), implicit waivers by the performance of commercial conduct are not consistent with the 1976 Act. But problems of waiver have continued to arise, in some cases with disconcerting results. In Ipitrade Int’l S.A. v. Federal Republic of Nigeria (465 F.Supp. 824 (D.D.C. 1978)) the court-seems to have held that a waiver of immunity from Swiss jurisdiction entailed a waiver from U.S. jurisdiction to enforce the Swiss award. This decision was criticized in Verlinden B.V. v. Central Bank of Nigeria (488 F.Supp. 1284, 1300–02 (S.D.N.Y. 1980)), but was followed in rather different circumstances in Libyan American Oil Co. v. Socialist People’s Libyan Arab J amahirya (482 F.Supp. 1175, 1178 (D.D.C. 1980)). On another point, see In re . . . Amoco Cadiz (491 F.Supp. 161 (N.D. Ill., E.D. 1979) (suing as plaintiff deemed waiver of sovereign immunity in respect of separate actions arising from same facts)). On the problem of waiver of immunity from prejudgment attachment, see infra note 252. See also supra note 211.

219 Vienna Convention on Diplomatic Relations, supra note 209, Arts. 22, 30; Vienna Convention on Consular Relations, supra note 209, Art. 31 (a more restricted immunity). For discussion, see the Philippine decision of the German Federal Constitutional Court, 38 ZaöRV at 279–80, concluding that “property which a sending State uses to carry out its diplomatic functions has the protection of sovereign immunity even if it is not included in the property or located in the premises described as entitled to [diplomatic] immunity in Art. 22 of the Vienna Convention.” And see Salmon, , Les Relations entre l’immunité de juridiction de l’Etat et les immunités diplomatiques et consulaires, in L’Immunité de juridiction et d’exécution des Etats, supra note 122, at 73 Google Scholar passim.

220 Supra, text to notes 1–7.

221 Of the bilateral treaties discussed above, only a few Soviet merchant shipping treaties limit arrest of state commercial ships; supra note 43. The matter is not expressly covered by the U.S.-USSR Agreement on Maritime Matters, Oct. 14, 1972, 23 UST 3573, TIAS No. 7513, though the effect of the parties’ stated policies on immunity of ships would be that the restrictive rule would apply; cf. TIAS No. 7513 at 74–75, 97.

222 Brussels Convention concerning the Immunity of State–owned Ships (1926), supra note 2, Art. 3; Geneva Convention on the Territorial Sea, supra note 1, Arts. 22–23. Cf. T. K. Thommen, supra note 4, at 3–8; Seidl-Hohenveldern, supra note 89, at 56–57.

223 Supra, text to notes 34–43. The exception is the Protocol of 1961 with Togo, supra note 35.

224 Supra notes 25, 35.

225 Supra note 59. This requirement might cause difficulty if the property in question had been converted to public use. Cf Flota Maritima Browning de Cuba S.A. v. Republic of Cuba, [1962] Can. S. Ct. 598. For the treatment of instrumentality property, see infra, text to notes 239–42.

226 Supra, text to notes 98–118. The English cases have not confronted the problem with any clarity, but the courts are unlikely to take a different position.

227 Del Bianco, supra note 59, at 117.

228 The problem of procedural immunities of foreign states is a neglected one. On the U.S. position, see Brower, Bistline, & Loomis, supra note 130, at 207–08. On the UK, cf. State Immunity Act, 1978, §13(1). For the problem of foreign state privilege from disclosure in litigation between other parties in England, see Buttes Gas & Oil Co. v. Hammer (No. 3), [1980] 3 W.L.R. 668 (C.A.).

229 Supra, text to notes 95–97. For commentary, see Ress, , Entwicklungstendenzen der Immunitat ausländischer Staaten, 40 ZaöRV 217, 271–75 (1980)Google Scholar (English summary), who regards the Court’s decision as “cautious and aimed at avoiding an eventual erosion of the legal institution of immunity as a whole.” Seidl-Hohenveldern, supra note 84, at 70–71, criticizes the Court’s adoption of a “purpose” test, which should be restricted to the context of diplomatic property. It is suggested that the formula proposed here to a large extent overcomes that difficulty.

230 Supra, text to notes 78–88.

231 Birch Shipping Corp. v. Embassy of Tanzania, Misc. No. 80–247 (D.D.C. Nov. 18, 1980).

232 The attachment would not have been available under §1610(a)(2), since the fund was not “used for the commercial activity upon which the claim was based,” but was justified under 11610(a)(1), pursuant to the finding that the defendant state had waived its immunity from execution (supra note 211). But this substantially answers the argument from effectiveness: there is no rule that a waiver should be “effective” beyond its terms.

233 ILA, supra note 161, at 27–28, 30. And cf. Higgins, supra note 60, at 50.

234 Thus, in Blagojevic c. Banque dujapon (1976), 66 Rev. Critique Droit Int’l Privé 359 (1977), the Cour de Cassation accorded immunity to the Bank of Japan in an action arising out of the bank’s exercise of exchange control functions. Cf. the United Kingdom Attorney-General, Sir Michael Havers, 949 Parl. Deb., H.C. (5th ser.), col. 417 (1978): “It has always been accepted that for the purposes of enforcement of judgments the funds belonging to a State’s central bank are regarded as the property of that State. . . .” On the U.S. Act, cf. del Bianco, supra note 59, at 116–18.

235 Supra, text to notes 153–59.

236 [1979] 2 Lloyd’s L.R. 277, 278–79 (quoting [1976] U.S. Code Cong. & Ad. News 6604).

237 Id. at 279. Waller L.J., rather more tentatively, agreed, as did Cumming–Bruce L.J.

238 Cf. the Libyan State Bank’s position in the LIAMCO case, supra note 118. And see the Note in 50 Brit. Y.B. Int’l L. 221 (1979). See also Arts. 12 and 15 of the Swiss-Hungarian treaty of 1950, supra note 46. Article 15 precludes attachment of Central Bank assets in actions against separate state instrumentalities. Article 12 prohibits attachment of funds in specified Central Bank accounts.

239 Supra, text at note 110.

240 Supra note 59. And see Thompson, J., The Status of Legal Entities in Socialist Countries as Defendants under the Foreign Sovereign Immunities Act of 1976, 12 Vand. J. Transnat’l L. 165 (1979)Google Scholar. On the question whether separate instrumentalities are exclusively covered by the 1976 Act or are subject to a cumulative jurisdiction under other provisions (e.g., as a “subject of a foreign state”), see Icenogle v. Olympic Airways, S.A., 82 F.R.D. 36 (D.D.C. 1979); Rex. v. Cia. Peruana de Vapores, S.A., 493 F.Supp. 459 (E.D. Pa. 1980).

241 [1949] 2 All E.R. 274 (C.A.).

242 Supra, text to notes 116–18. Cf. Art. 15 of the Swiss–Hungarian treaty, supra note 46, to this effect. See also Huberlant & Delperée, , Les Personnes de droit public bénéficiaires de l’immunité d’exécution, in L’Immunite de juridiction et d’exécution des Etats, supra note 122, at 211–56 Google Scholar; Bouchez, supra note 175, at 28; United Euram Corp. v. U.S.S.R., 461 F.Supp. 609 (S.D.N.Y. 1978).

243 Cf. Larivière v. Morgan, (1872) L.R. 7 Ch. App. 550; United States v. Harris & Co. Advertising, Inc., 149 So.2d 384 (1963); Procureur-Générale c. Vestwig, 73–76 J. Droit Int’l 4 (1952) .

244 Unless the attachment is purely notional, without effective seizure and detention of the property. Under the Scots procedure of arrestment, the property is released as soon as the defendant enters an appearance. At a time when the United States still adhered to the rule of immunity against execution, quasi in rem attachment of state property was nonetheless allowed in order to attract substantive jurisdiction; M. Whiteman, supra note 31, at 711–12. The Foreign Sovereign Immunities Act abolishes prejudgment attachment in all cases (§§1609– 1611), providing instead more extensive methods of obtaining in personam jurisdiction by service of process (§1608).

245 Cf. Ibrahim Shanker & Co. v. Distos Compania Naviera S.A. (The Siskina), [1978] 1 Lloyd’s L.R. 1, 5–8, per Lord Diplock.

246 Cf. Brasseur v. Republic of Greece (1933), 59 J. Droit Int’l 1088 (1932), 6 Ann. Dig. 164, 167 (1938) (Civil Tribunal of Brussels). However, the U.S. position after 1952 allowed quasi in rem proceedings against foreign states (with consequent interim attachment of property), even though final execution was precluded; see M. Whiteman, supra note 31, at 709–15. And cf. Braden Copper Co. v. Groupement d’lmportation des Métaux (Trib. Gr. Inst. 1972), 12 ILM 187(1973).

247 For the related machinery of maritime liens, cf. the decision of the Privy Council in Bankers Trust Int’l Ltd. v. Todd Shipyards Corp., [1980] 3 W.L.R. 400.

248 Supra, text to notes 1–7, 41–43.

249 On the Mareva injunction, see generally Mareva Compania Naviera S.A. v. International Bulk Carriers Ltd., [1975] 2 Lloyd’s L.R. 509; Rasu Maritima S.A. v. Perusahaan Pertambangan Minyakdangas Bumi Negara, [1977] 3 W.L.R. 518; Ibrahim Shanker & Co. v. Distos Compania Naviera S.A. (The Siskina), [1978] 1 Lloyd’s L.R. 1; and Bin Turki v. Abu– Taha, [1980] 1 W.L.R. 1268. Despite a critical tendency in the speeches of Lords Diplock and Hailsham in The Siskina, the procedure seems to be well established. There are difficulties, however, in its application to state property. Since it operates in personam, it may not be available in respect of state property held by the state itself (as distinct from property held by a state instrumentality or third person), if only because of the difficulty of finding an appropriate person to enjoin. Secondly, even if, at common law, final execution is available against state property, a Mareva injunction cannot be obtained unless there is some evidence that the defendant will default. It could not simply be assumed, against a foreign state or instrumentality, that it intended to defeat the forum’s jurisdiction by removing property or assets. As Lord Denning M.R. said in Etablissement Esefka et Cie v. Central Bank of Nigeria, in the absence of evidence to the contrary, “it would not be right to say that the government of Nigeria would not honour its obligations or that there is any risk of its dishonouring its obligations if it is found to be liable by this Court.” [1979] 1 Lloyd’s L.R. 445, 445. Lawton L.J. agreed.

Apparently, the point was not taken by counsel in the Hispano Americana case. But a similar position was taken by the District Court of Amsterdam in 1978; Kingdom of Morocco v. Stichting Revaliditie Centrum “de Trappenberg,” 10 Neth. Y.B. Int’l L. 444 (1979).

250 Supra, text to notes 21–22, 35–38.

251 Section 13(2)(a) of the Act prevents relief from being given “against a state by way of injunction or order for specific performance or for the recovery of land or other property,” and the exceptions to immunity from execution in section 13(4) do not apply to section 13(2)(a). Clearly enough, this prevents a Mareva injunction against a state as such; the question is whether it prevents such an injunction against a nonstate defendant (other than a central bank) in respect of state property. That depends on whether an (indirect) restraint on state property is relief “against a state,” since it is clearly not “for the recovery of land or other property.” During the parliamentary debates on the State Immunity Bill, Lord Wilberforce proposed the insertion of “(a) or” in what is now section 13(4) of the Act, to achieve this result; 389 Parl. Deb., H.L. (5th ser.), cols. 1935–38 (1978), on the ground that “the courts ought not to be deprived of the power to freeze assets in this country where there is a genuine and properly constituted dispute in which a State may be involved.” His concern was mainly with cases in which the person enjoined was not the state (col. 1937). There was support for this view (e.g., Havers, 949 Parl. Deb., H.C. (5th ser.), col. 417 (1978)), but the amendment was not passed.

252 28 U.S.C. 11610(d). Cf. del Bianco, supra note 59, at 143–44; Smit, supra note 130, at 67. It is still unclear whether the Iranian treaty (supra notes 29–30) entails waiver of prejudgment attachment. The reference to “immunity . . . from . . . execution of judgment, or other liability to which privately owned and controlled enterprises are subject” has been agreed not to constitute an “explicit waiver,” but the statutory requirement of an explicit waiver does not apply to “existing international agreements” waiving immunity (§ 1609). In Behring Int’l Inc. v. Imperial Iranian Air Force (475 F.Supp. 383, 394–95 (1979)) the court held that on “ordinary principles of construction” Article XI(4) of the Iranian treaty did waive immunity from prejudgment attachment. But in three other cases it was held that the exceptional nature of prejudgment attachment against state property, in the context of the treaty, entailed its own standard of explicitness which Article XI(4) failed to meet; Reading & Bates Corp. v. National Iranian Oil Co., 478 F.Supp. 724, 727–29 (S.D.N.Y. 1979); E-Systems Inc. v. Islamic Republic of Iran, 491 F.Supp. 1294, 1300–01, 1303–04 (N.D. Tex. 1980); New England Merchants Nat’l Bank v. Iran Power Generation & Transmission Co., 502 F.Supp. 120 (S.D.N.Y. 1980), 19 ILM 1298, 1307–11 (1979). Clear analysis has not been assisted by the failure to see the limited extent, ratione personae, of the treaty waiver; supra note 30.