Immunity of United Kingdom from Jurisdiction (Germany) Case

CourtCourt of Appeal of Schleswig (Germany)
German Federal Republic, Court of Appeal of Schleswig.
Immunity of United Kingdom from Jurisdiction (Germany) Case.

Jurisdiction — Exemptions from — Foreign States — Acts Jure Imperii and Acts Jure Gestionis — Claim for Damages against Foreign State — The Law of Germany.

The Facts.—The plaintiff, a haulage contractor, contended that in 1945 officers of the British army of occupation in Germany had asked him to go to the Soviet-occupied zone of Germany and bring back to the British zone of occupation certain arms and military plans. He alleged that while in the Soviet-occupied zone he was arrested by members of the Soviet armed forces and kept in captivity for some months, and that as a result he sustained injury to his health. In the present action he claimed that the United Kingdom was liable to him in damages for the injuries sustained in the execution of the alleged contract made with the British officers in 1945 (the alleged contract being implicit in the request referred to above), and that he was therefore entitled to an executory order against debts owed by the Government of the German Federal Republic to the Government of the United Kingdom and arising from the London Debt Agreement concluded between the two countries in 1953.

Held: that the application for an executory order must be dismissed.1 Although a foreign State was subject to the jurisdiction of the German courts in matters arising out of contracts of a commercial character, the alleged contract in the present case was more in the nature of the exercise of sovereign authority by the United Kingdom. Furthermore, the German courts should not, in the interest of reciprocity, exercise jurisdiction over a foreign State where the foreign State concerned—as was the case with the United Kingdom—would not itself claim jurisdiction if an action were brought against another foreign State in its own courts.

The Court said: “It has become doubtful in recent years whether there is in existence a recognized rule of international law

that States are exempt from the jurisdiction of other States also in cases where private transactions form the subject-matter of the proceedings. According to the doctrine of absolute immunity there is such a rule of international law, whereas according to the doctrine of restricted immunity there is no such rule. The absolute doctrine has been adopted in the United States of America, in the United Kingdom, and in a number of smaller countries. Belgium, Italy and...

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