International & Commercial Litigation
Playing for time – claiming to be a sovereign state - Part 3
In response to AELF’s claim filed in the Commercial Court in London, SLM raised a very technical argument that the airline was not served correctly under the English State Immunity Act because the airline is, according to the airline, a sovereign state.
In ,Playing for time – claiming to be a sovereign state – Part 2 I suggested that that very technical argument was wholly without merit and that even if SLM were a state and needed to be served in a specific way, the airline had consented to service of process by the bailiff in Suriname and had waived any objection to the jurisdiction.
SLM sought permission to appeal to appeal on three grounds, as follows: –
That “appears in proceedings” in section 12(3) of the SIA must refer to any act of waiver, whether of the common law or statutory type, which disables the defendant from disputing jurisdiction.
The Judge erred in law in concluding that SLM was not entitled to be served with the Claim Form in accordance with section 12(1) of the SIA because:
2.1. SLM was a “separate entity” and a separate entity is not entitled to the privilege granted by section 12(1).
2.2. SLM’s entry into the agreement which gives rise to these proceedings was not an act in the exercise of Suriname’s sovereign authority.
Even if section 12(1) of the SIA does apply to SLM, SLM agreed to accept service in an alternative manner within the meaning of section 12(6) of the SIA.
Phillips LJ, who dealt with the application without a hearing, pithily refused permission to appeal for the Reasons set out below.
“In view of the clear wording of s.14 of the State Immunity Act 1978, it is not remotely arguable that the service provisions in s. 12(1) of that Act extend to separate entities such as the defendant/applicant. The view of Butcher J in Dynasty Co for Oil and Gas Trading Ltd v Kurdistan Regional Government of Iraq  EWHC 952 (Comm) is plainly right.
Ground 2 of the appeal therefore has no real prospect of success. As grounds 1 and 3 would only arise if the applicant were to succeed on ground 2, it is not appropriate to grant permission to appeal.”
The next step in the proceedings is a hearing of a summary judgment application. For the result, see Part 4.
Steven Loble of W Legal is representing AELF with Hannah Brown QC