Adjudication of foreign state conduct in the municipal court

The purpose of this, the final chapter in this work, is to examine the extent to which the conduct of a foreign state may permissibly be subjected to examination in an Anglo-Commonwealth court in a claim against it by a private plaintiff. It addresses two limitations that do not apply to legal process against other defendants and arise by reason of the distinctive character of the functions of the state. The first – the law of state immunity – operates, where it applies, as a bar to the jurisdiction of the court ab initio. The second – the foreign act of state – is concerned with determination of the law applicable to the claim.

Both of these doctrines have a common root in considerations derived from the public international law of jurisdiction. They exist as an essential corollary of the sovereign equality of states to respect, and therefore not to call into question, the sovereign actions of the foreign state within its own territory. Thus formulated, this principle of domestic jurisdiction has two essential limitations. First, it is concerned only with the sovereign actions of the foreign state so that, as one recent commentator put it, ‘the touchstone [is not] the mere identity of the defendant as a foreign state but is also, more narrowly, the inherently sovereign character of the acts of that state which are sought to be impugned’. Thus the restrictions imposed by this principle on the jurisdiction of the courts of the forum are limitations ratione materiae not ratione personae. Second, and consistent with the underlying concept of protecting the territorial sovereignty of the foreign state from interference by other states, the principle is primarily concerned with the acts of the sovereign taking place on its own territory.