International law, Sixth edition
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International Law MALCOLM N. SHAW
Ibid. Note that the Supreme Court in Saudi Arabia v. Nelson 123 L Ed 2d 47, 58–9; 100
ILR, pp. 545, 550–1, held that the phrase ‘based on’ appearing in the section, meant ‘those elements of a claim that, if proven, would entitle a plaintiff to relief under his theory of the case’. 146 849 F.2d 1515. 147 Referring to the cases of Transamerican Steamship Corp. v. Somali Democratic Republic 767 F.2d 998, 1004, where demand for payment in the US by an agency of the Somali government and actual bank transfers were held to be sufficient, and Texas Trading & Milling Corp. v. Federal Republic of Nigeria 647 F.2d 300, 312; 63 ILR, pp. 552, 563, where refusal to pay letters of credit issued by a US bank and payable in the US to financially injured claimants was held to suffice. 148 119 L Ed 2d 394 (1992); 100 ILR, p. 509. 149 119 L Ed 2d 407; 100 ILR, p. 517, citing 941 F.2d at 152. i m m u n i t i e s f r o m j u r i s d i c t i o n 725 immunity of a state is unaffected where a state enterprise or other entity established by a state which has an independent legal personality and is capable of suing or being sued and acquiring, owning or possessing and disposing of property, including property which that state has authorised it to operate or manage, is involved in a proceeding which relates to a commercial transaction in which that entity is engaged. Article 2(1)c of the Convention provides that the term ‘commercial transaction’ means: (i) any commercial contract or transaction for the sale of goods or the supply of services; (ii) any contract for a loan or other transaction of a financial nature, in- cluding any obligation of guarantee or of indemnity in respect of any such loan or transaction; (iii) any other contract or transaction of a commercial, industrial, trading or professional nature, but not including a contract of employment of persons. 150 Contracts of employment Section 4(1) of the State Immunity Act 1978 provides that a state is not immune as respects proceedings relating to a contract of employment between the state and an individual where the contract was made in the UK or where the work is to be performed wholly or in part there. 151 The section does not apply if at the time of the proceedings the individual is a national of the state concerned 152 or at the time the contract was made the individual was neither a national nor habitual resident of the UK or the parties to the contract have otherwise agreed in writing. However, these provisions do not apply with regard to members of a diplomatic mission or consular post, 153 a fact that has rendered section 4(1) signifi- cantly weaker. 154 There have been a number of cases concerning immunity and contracts of employment, particularly with regard to employment at foreign embassies. In Sengupta v. Republic of India, for example, a broad 150 See as to earlier drafts of this provision, Report of the International Law Commission, 1991, pp. 13 and 69, and Yearbook of the ILC, 1986, vol. II, part 2, p. 8. 151 See e.g. H. Fox, ‘Employment Contracts as an Exception to State Immunity: Is All Public Service Immune?’, 66 BYIL, 1995, p. 97, and R. Garnett, ‘State Immunity in Employment Matters’, 46 ICLQ, 1997, p. 81. 152 See e.g. Arab Republic of Egypt v. Gamal Eldin [1996] 2 All ER 237. 153 S. 16(1)a. 154 See e.g. Saudi Arabia v. Ahmed [1996] 2 All ER 248; 104 ILR, p. 629. 726 i n t e r nat i o na l l aw decision prior to the 1978 Act, the Employment Appeal Tribunal held on the basis of customary law that immunity existed with regard to a con- tract of employment dispute since the workings of the mission in question constituted a form of sovereign activity. 155 The position in other countries is varied. In United States of America v. The Public Service Alliance of Canada (Re Canada Labour Code), for example, it was held that the conduct of labour relations at a foreign mil- itary base was not a commercial activity so that the US was entitled to sovereign immunity in proceedings before a labour tribunal, 156 while in Download 7.77 Mb. Do'stlaringiz bilan baham: |
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