Venne v Democratic Republic of the Congo,
| Court | Superior Court of Quebec (Canada) |
| Date | 18 October 1968 |
(Taschereau, Owen and Brossard JJ.)
Sovereign immunity Foreign State Restrictive theory of sovereign immunity Onus of establishing the claim to immunity Whether on the foreign State State obtaining services of architect for the construction of State's national pavilion at exhibition Whether a public sovereign act of the foreign State Mode of determination of the question Whether foreign State entitled to immunity The law of Canada
Summary: The facts:The plaintiff was engaged as an architect to prepare plans for the construction of the national pavilion of the Congo at an international exhibition in Canada (Expo '67), The request for his services was made by the duly accredited diplomatic representatives of the Congo as well as by the representative of the Congo's Department of Foreign Affairs. The plaintiff claimed his fees for the services he had rendered. The Government of the Congo pleaded sovereign immunity and appealed from a decision of Leduc J. refusing to dismiss the action on that ground in preliminary proceedings.
Held:The Government's plea of immunity was rejected. The absolute theory of sovereign immunity had now been superseded by the restrictive theory, so that a foreign State was entitled to immunity only in respect of public, sovereign acts. It was for the foreign State to show that an action brought against it was based upon such acts and that it was then entitled to sovereign immunity. This the Government of the Congo had failed to do.
The text of the judgment of the Court commences on the following page.
Taschereau, J. (translation):I concur with the opinion expressed by my colleagues, which conforms with the one expressed by the Secretary of State for the United States of America in a letter dated January 31, 1968, addressed to the Ambassador of the Republic of Guinea, dealing with the absolute immunity which removes sovereign States from the jurisdiction of foreign tribunals. That situation involved a case pending before the Supreme Court of the State of New York, under the name New York World's Fair Corporation 196465 v. Republique de la Guinee.
As that case was very similar to the one at bar, I shall quote in extenso the text of the letter in question:
His Excellency
Karim Bangoura,
Ambassador of the Republic of Guinea.
His Excellency,
I have the honor to refer to your request of October 24, 1967, that the Government of the United States transmit to the Supreme Court of the State of New York (County of Queens), a suggestion of Guinea in as action styled New York World's Fair Corporation 196465 v. Republic of Guinea, Index No 477/1967.
The Department of State has given careful consideration to this request. It has reviewed the material submitted by the Republic of Guinea and its attorneys, and by the attorneys for the New York World's Fair. As yon may know, at the request of the parties an oral hearing was held on January 15, 1968.
In considering requests for suggestions of sovereign Immunity, the Department of State applies the restrictive theory of sovereign immunity, as announced in the Tate Letter, 26 Department of State Bulletin 184 (1952). Under that theory, the immunity of the sovereign is suggested with regard to sovereign or public acts, (jure imperii) or a state, bat not with respect to private acts (jure gestiones).
In this case, the Republic of Guinea requests a suggestion of sovereign immunity from a suit arising out of its participation in the 196465 New York World's Fair, more particularly, from a contract it entered into with the World's Pair Corporation for the rental by the Republic of Guinea of exhibition space at the Fair grounds. In considering this application, the Department has been particularly impressed by the fact that the Pair was privately organized, including a number of business corporations, participated in the Fair, and that in at least one case a pavilion in the international section was sponsored by a group of business firms resident in the country concerned. Considering these facts and the character of the New York World's Fair, the actions of the Republic of Guinea giving rise to this suit do not qualify as sovereign or public acts under the standards established in the Tate Letter. The Department of State finds it necessary, therefore, to decline the request for a suggestion of sovereign immunity.
Accept, Excellency, the renewed assurances of my highest consideration.
For the Secretary of State:
Owen, J.:This is an appeal from an interlocutory judgment of the Superior Court, District of Montreal, dated October 20, 1967, which dismissed a declinatory exception, by the defendant, the Government of the Democratic Republic of the Congo, invoking sovereign immunity. The action was taken "by an architect claiming fees for professional services rendered in preparing plans for the Congo pavilion at Expo 67.
The judgment appealed from held that the relations between the sovereign State and the architect were of a private nature and that in connection therewith the sovereign State was subject to the jurisdiction of our Courts (J.C., p. 19):
Considering that when the defendant engaged the services of the plaintiff, through its Chargs d'Affaires, who were duly accredited with the proper authorities of Expo 1967it was not performing a public exercise of its power, bat was acting in a purely private capacity;
Considering that although, the Democratic Republic of the Congo is a sovereign State, a contractual relationship of a purely private nature was established between the parties.
The problem raised by this appeal is whether under conditions existing today our Courts will continue to apply the doctrine or theory of absolute sovereign immunity or whether the time has come to apply a doctrine or theory of qualified or restrictive sovereign Immunity.
In my opinion we should abandon the doctrine of absolute sovereign immunity and adopt a theory of restrictive sovereign immunity.
Some concept of the conflict between these two doctrines may be gathered from the following statements by Judges and authors.
Lord Denning, Rahimtoola v. Nizam of HyderabadELR, [1958] A.C. 379 at p. 422:
Faced with an inconsistency between two lines of cases, the only course is to see which is more consistent with principle. For this I go tack, as Upjohn J. did, to the words of that great international lawyer, Sir Robert Phillimore, in The Charkieh, who, after a full review of the authorities, said this: The object of international law, in this as in other matters is not to work injustice, not to prevent the enforcement of a just demand, bat to substitute negotiations between governments, though they may be dilatory and the issue distant and uncertain, for the ordinary use of courts of justice in cases where such use would lessen the dignity or embarrass the inactions of the representatives of a foreign State. Applying this principle, it seems to me that at the present time sovereign immunity should not depend on whether a foreign government is impleaded, directly or indirectly, but rather on the nature of the dispute. Not ca whether conflicting rights have to be decided, but on the nature of the conflict. Is it properly cognizable by our courts or not? If the dispute brings into question, for instance, the legislative or international transactions of a foreign government, or the policy of its executive, the court should grant immunity if asked to do so, because it does offend the dignity of a foreign sovereign to have the merits of such a dispute canvassed in the domestic courts of another country; but if the dispute concerns, for instance, the commercial transactions of a foreign government (whether carried en by its own departments or agencies on by setting up separate legal entities), and it arises properly within the territorial jurisdiction of our courts, there is no ground for granting immunity.[2]
Bernard Fensterwald, Jr., Sovereign Immunity and Soviet State Trading, 63 Harvard Law Rev. 614 at pp. 62022 (194950):
...The Theory of Qualified Immunity.Opposed to those who believe that the grant of sovereign immunity should be virtually absolute are those who feel that immunity is justified only where the acts of the foreign State are manifestations of sovereign authority (i.e., public acts). In matters of jurisdiction the foreign State, in so far as it indulges in civil or commercial activities (i.e., private acts), should 'be treated, in the same manner as any other individual or corporate personality. More treatises than judicial opinions adopt this thesis. (Among the adherents of the theory of qualified immunity are Audinet, Demangeat, Fauchille, Hyde, de Lapradelle, Laurent, de Peape, de Visscher, and Weiss. See Fairman, supra note I, at 570).
Supporters of the doctrine of qualified immunity offer three arguments in its favor. First, they contend that the grant of immunity is of an exceptional nature and should be confined within the rationale underlying the concept of immunity. Thus, there is no reason for granting immunity when the sovereignty of the State is not in question, as when the State acts as a private individual or has entered into a transaction which does not involve its political or governmental powers.
Second, the courts should not give a literal interpretation to the historical precedents. Although the language of the old cases seems to favor absolute immunity, the doctrine of sovereign immunity was originally formulated to apply to a medieval civilization in which sovereigns were individual autocratic rulers.
Third, advocates of the theory of a split personality of the State claim that a division between acts jure imperii and acts jure gestionis
can be made under either of two theories. One theory looks to the purpose of the act; the other to the nature of the act. Under the purpose theory an act will be held to be public only if the object of the performance is
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