Gouvernement de la République Démocratique du Congo v. Venne

Gouvernement de la République Démocratique du Congo v. Venne
Collection
Supreme Court Judgments
Date
1971-05-31
Report
[1971] SCR 997
Judges
Fauteux, Joseph Honoré Gérald; Abbott, Douglas Charles; Martland, Ronald; Judson, Wilfred; Ritchie, Roland Almon; Hall, Emmett Matthew; Spence, Wishart Flett; Pigeon, Louis-Philippe; Laskin, Bora
On appeal from
Quebec
Subjects
International law
Decision Content
Supreme Court of Canada
Gouvernement de la République Démocratique du Congo v. Venne, [1971] S.C.R. 997
Date: 1971-05-31
Le gouvernement de la République démocratique du Congo Appellant;
and
Jean Venne Respondent.
1970: October 22; 1971: May 31.
Present: Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Hall, Spence, Pigeon and Laskin JJ.
ON APPEAL FROM THE COURT OF QUEEN’S BENCH, APPEAL SIDE, PROVINCE OF QUEBEC
International law—Sovereign immunity—Action by architect to recover from foreign State fees for services—Declinatory exception—Waiver of immunity.
The respondent, an architect, claimed to have been retained on behalf of the appellant government for the purpose of making preliminary studies and preparing sketches in relation to the national pavilion which the appellant proposed to build at Expo 67. The Congo decided not to proceed with the pavilion. The appellant filed a declinatory exception whereby it claimed that, by reason of its status as a sovereign state, it could not be impleaded in the Quebec Courts. The material before the Courts consisted of the declaration or claim, the declinatory exception and two formal admissions: that the appellant had accredited its chargé d’affaires as its commissioner general to the exhibition and also that the Democratic Republic of Congo is a sovereign State. The exception was dismissed by the trial judge, and his judgment was upheld by the Court of Appeal. The government of the Congo appealed to this Court.
Held (Hall and Laskin JJ. dissenting): The appeal should be allowed.
Per Fauteux C.J. and Abbott, Martland, Judson, Ritchie, Spence and Pigeon JJ.: The record as a whole discloses that the appellant’s employment of the respondent was an act done in the performance of a sovereign act of state. It follows that the appellant could not be impleaded in the Courts of this country even if the so-called doctrine of restrictive sovereign immunity had been adopted in our Courts. Cases concerning sovereign immunity decided in the Courts of the United States in recent years are of little or no authority in Canada.
The proposition that a defendant can be taken to have submitted to the jurisdiction by entering a plea to the effect that it is not subject thereto, cannot be accepted. In any event, a sovereign state is not to be held to have submitted to a sovereign jurisdiction unless the submission be made in the face of the Court, coupled with a request that such jurisdiction be exercised.
Per Hall and Laskin JJ., dissenting: Resort to applicable rules of procedure for the purpose of asserting immunity and contesting jurisdiction cannot be converted into a submission to the Court’s authority to deal with the merits. To be effective, waiver must be made in the face of the Court and at the time the Court is asked to exercise its jurisdiction.
The Court is faced with an unqualified contention that a sovereign state cannot as such be impleaded regardless of the activity in which it is engaged and out of which a suit against it is brought in a foreign domestic Court. To allow the declinatory exception would thus be to reaffirm the doctrine of absolute immunity. That doctrine is spent. It would be wrong to revive it on any view of a deficiency of evidence to overcome any suggested presumption that when a sovereign state acts through an accredited diplomatic representative any ensuing transaction with a private person is for a so-called public purpose. Since jurisdiction which is invoked as here cannot be effectively repudiated ab initio on the basis of unqualified immunity, the action should proceed. Even if the immunity claimed herein is to be tested on a restrictive basis, as it should be, there is not enough in the record before this Court upon which a ready affirmation of immunity can be founded. The claim cannot be allowed at this stage of the action.
APPEAL from a judgment of the Court of Queen’s Bench, Appeal Side, province of Quebec[1], affirming a judgment of Leduc J. which had dismissed a declinatory exception. Appeal allowed, Hall and Laskin JJ. dissenting.
Barnabas Vizkelety, for the appellant.
Rosaire Beaulé, for the respondent.
The judgment of Fauteux C.J. and of Abbott, Martland, Judson, Ritchie, Spence and Pigeon JJ. was delivered by
RITCHIE J.—This is an appeal from a judgment of the Court of Appeal of the Province of Que- bec1 dismissing an appeal from a judgment of the Superior Court of Montreal which disallowed the appellant’s declinatory exception whereby it had claimed that, by reason of its status as a sovereign state, it could not be impleaded in the Quebec courts.
The respondent is an architect who claims to have been retained between February 1965 and March 1966 on behalf of the appellant for the purpose of making preliminary studies and preparing sketches in relation to the national pavilion which La République Démocratique du Congo (hereinafter called “The Congo”) proposed to build at “Expo 67”. The respondent’s declaration incorporated by reference an unsigned copy of a contract, pursuant to which he claims to have been employed, and also certain sketches of the proposed pavilion which he claims to have furnished to the appellant. The respondent prepared a bill of $20,000 for services rendered which he subsequently reduced to $12,000 and which was not paid because the Congo decided not to proceed with the pavilion.
The appellant has not denied any of the allegations contained in the declaration and no evidence whatever was called by either party, but the following admissions made on behalf of the respective parties constitute part of the record before this Court:
[TRANSLATION] The defendant admits through counsel that on the dates alleged in the declaration Messrs. Félix Mankwe and Pierre M’Balé were duly accredited Chargés d’Affaires of the Embassy of the Democratic Republic of the Congo in Ottawa, and duly appointed Commissioners General to the Montreal World Exhibition.
Signed: VIZKELETY
The plaintiff admits through counsel that since 1960 the Government of the Democratic Republic of the Congo has been a sovereign state.
Signed: G. GIRARD
The first paragraph of the declaration describes the offer allegedly made by the appellant to retain the respondent’s professional services as follows:
[TRANSLATION] 1. During the period from November 1965 to March 1966, Mr. Félix Mankwe, Chargé
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d’Affaires and Commissioner General for the Democratic Republic of the Congo, Mr. Pierre A. M’Balé, his successor in those duties, and the Deputy Minister of Foreign Affairs of the Democratic Republic of the Congo, in Montreal, on behalf of the said country, did request the professional services of plaintiff, an architect in Montreal, to carry out preliminary studies and prepare sketches in relation to the Pavilion which that country proposed to build at Expo 67.
It is common ground that the term “Expo 67” as used in the declaration refers to the exhibition defined in s. 2(f) of the Canadian World Exhibition Corporation Act, 1962-63 (Can.), c. 12, as follows:
2. (f) Exhibition means the Canadian Universal and International Exhibition, Montreal, 1967, for which registration was granted by the Council of the Bureau of International Exhibitions on November 13, 1962.
Mr. Justice Leduc in the Superior Court and the three judges who sat on the Court of Appeal, were all of opinion that the contract in question was entered into by the Congo as a private commercial transaction and that it did not bear the character of an act of state or an act done for the public purpose of a foreign sovereign state.
Mr. Justice Leduc expressed his finding in this regard in the following terms:
[TRANSLATION] WHEREAS the defendant, by requesting plaintiff’s services through its Chargés d’Affaires, duly accredited to the governing body of Expo 67, did not perform an act jure imperii (acte de puissance publique) but an act jure gestionis (acte de gestion d’une nature privée);
WHEREAS, although the Democratic Republic of the Congo is a sovereign State, the contractual relations between the parties were purely of a private nature;…
Accepting the finding that the contractual relations between the parties were of a purely private nature, Mr. Justice Owen proceeded to pose the problem as he understood it in the following terms:
The problem raised by this appeal is whether under conditions existing today our courts will continue to apply the doctrine or theory of absolute
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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.
Stated briefly, the theory of sovereign immunity recognizes the classical doctrine that a foreign sovereign cannot, without his consent, be impleaded in the courts of another sovereign state, whereas according to the theory of restrictive sovereign immunity, which has been accepted by the United States State Department and consequently by the courts of that country, the immunity of the foreign sovereign is recognized only with regard to sovereign or public acts (jure imperii) but not with respect to private acts (jure gestionis).
It accordingly appears to me, with all respect for the views of others, that the problem so dramatically posed by Mr. Justice Owen can only arise in this case if the judges of the Court of Appeal were right in adopting, without discussion, the finding of the learned trial judge that when the appellant employed the respondent to prepare sketches of the national pavilion which it proposed to build at a duly authorized international exhibition, it was not performing a public act of a sovereign state but rather one of a purely private nature.
The record indicates that the judges of the Court of Appeal simply accepted this finding of the trial judge and did not pause to consider the material upon which it was based. In fact, in his reasons for judgment, Mr. Justice Leduc disposes of the matter in one paragraph where he says:
[TRANSLATION] In the circumstances there is no doubt that this was a private act, since it is a Montreal architect claiming from defendant, his principal, the minimum payment for his professional services, as the result of jure gestionis acts (actes de gestion) performed by the latter’s Chargés d’Affaires, duly accredited not only to the sovereign power of Canada, but also to the Commissioners General of the 1967 World Exhibition.
As I have indicated, the material before this Court is in my view, limited to the terms of the
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respondent’s declaration and the admissions made on behalf of the parties, all of which is to be read against the background of the Canadian World Exhibition Corporation Act, supra, which incorporated the agency created by the Government of Canada for the purposes of planning, organizing, holding and administering the Canadian Universal and International Exhibition.
This record discloses nothing more than that the contract here in question was made in pursuance of the desire of a foreign sovereign state to construct a national pavilion at an international exhibition and to be thereby represented at that exhibition which was registered by the Council of the Bureau of International Exhibitions and which was to be held (in the words of s. 3(1) of the Canadian World Exhibition Corporation Act, supra) “in connection with the celebration of the centennial of Confederation in Canada in a manner in keeping with its national and historical significance.”
Mr. Justice Leduc, and consequently the Court of Appeal, adopted the view that the nature of the transaction here at issue was to be determined entirely on the basis that the respondent was a Montreal architect claiming against his employer and that the matter was therefore a purely private one. Considered from the point of view of the architect, it may well be that the contract was a purely commercial one, but, even if the theory of restrictive sovereign immunity were applicable, the question to be determined would not be whether the contractor was engaged in a private act of commerce, but whether or not the Government of the Congo, acting as a visiting sovereign state through its duly accredited diplomatic representatives, was engaged in the performance of a public sovereign act of state.
I think that it is of particular significance that the request for the respondent’s services was made not only by the duly accredited diplomatic representatives of the Congo who were Commissioners General of the Exhibition, but also by the representative of the Department of Foreign Affairs of that country. (See declaration, para. 1). This makes it plain to me that in preparing for the construction of its national pavilion, a department of the Government of a foreign state, together with its duly accredited diplomatic representatives,
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were engaged in the performance of a public sovereign act of state on behalf of their country and that the employment of the respondent was a step taken in the performance of that sovereign act. It therefore follows in my view that the appellant could not be impleaded in the courts of this country even if the so-called doctrine of restrictive sovereign immunity had been adopted in our courts, and it is therefore unnecessary for the determination of this appeal to answer the question posed by Mr. Justice Owen and so fully considered by the Court of Appeal. In an area of the law which has been so widely canvassed by legal commentators and which has been the subject of varying judicial opinions in different countries, I think it would be undesirable to add further obiter dicta to those which have already been pronounced and I am accordingly content to rest my opinion on the ground that the appellant’s employment of the respondent was in the performance of a sovereign act of state.
There is more than a suggestion in the reasons for judgment of the Court of Appeal that in determining whether the act of a foreign sovereign is public or private, the burden of proof lies upon the sovereign to show that the act was a public one if it is to be granted sovereign immunity. As I have indicated, there is no dispute as to the facts in the present case and in my view, to the extent that it may have any bearing on the determination of this appeal, the question of whether the contract in question was purely private and commercial or whether it was a public act done on behalf of a sovereign state for state purposes, is one which should be decided on the record as a whole without placing the burden of rebutting any presumption on either party.
Reference was made in the reasons for judgment of Mr. Justice Owen to the judgment of Mr. Justice Reid in Allan Construction v. Venezuela[2], where the Court was considering a contract for the construction of a pavilion at “Expo 67” and it was held that as the contract was a purely private and commercial one, the government of the foreign sovereign state there in question was subject to the jurisdiction of the Quebec courts.
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In that case there was ample evidence that the foreign state in question intended to incorporate in its pavilion a restaurant with the right to sell alcoholic liquor and to sell the products of Venezuela. I do not find it necessary for the purpose of the present case to comment on the conclusion drawn by the learned trial judge from his finding that the contract was a commercial one; here there is no evidence of a commercial venture and in the view which I take of the matter I see no basis upon which the appellant should be required to assume the negative burden of proving that no commercial undertakings were to be associated with its participation in the Exhibition.
Although, as I have indicated, I am content to base my decision on the premise that the appellant’s employment of the respondent was an act done in the performance of a sovereign act of state, I think some consideration should be given to the careful and extensive arguments contained in the reasons for judgment in the Court of Appeal.
In this regard I think it should be pointed out that, as I have indicated, the decisions in the United States, upon which the reasons for judgment of Taschereau and Owen JJ. are clearly based, stem from opinions furnished by the State Department in that country which come to the courts by way of “letters of suggestion” and which are generally regarded as authoritative statements of the foreign policy of that country. In one of these letters, i.e., the Tate Letter, written in 1952 by Professor J.B. Tate who was then the acting legal adviser to the State Department, it was categorically stated that “… it will hereafter be the Department’s policy to follow the restrictive theory of sovereign immunity in the consideration of requests of foreign governments for a grant of sovereign immunity”. This position appears to have been generally accepted in the United States courts although they have some leeway in cases where the State Department refuses to make a suggestion of immunity, and the Victory Transport case[3] is cited by Mr. Justice Owen as an example of an independant judicial acceptance of the theory of restrictive sovereign immunity. It is pointed out, however, that in that
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case Mr. Justice Smith, speaking on behalf of the United States Court of Appeals (second circuit) stated at page 358:
Where, as here, the court has received no communication from the State Department concerning the immunity of the Comisaria General, the court must decide for itself whether it is the established policy of the State Department to recognize claims of immunity of this type.
It is thus clear that in such cases the question to be determined in the United States courts is whether it is the established policy of the State Department to recognize the immunity claimed in any particular case. As no such question arises in this country, I take the view that cases concerning sovereign immunity decided in the courts of the United States in recent years are of little or no authority in Canada.
Although I do not intend to discuss all the relevant cases which have been decided in this Court and have been so fully reviewed by Mr. Justice Brossard, I nevertheless think it desirable to make reference to the case of Saint John et al. v. Fraser-Brace Overseas Corp., et al[4]. This was a case involving liability to municipal taxation of property being used on behalf of the United States Government in the construction of a radar defence system which had been agreed to by the Governments of Canada and the United States. The special nature of the joint project was undoubtedly a circumstance which affected the court’s reasoning but in the course of the very comprehensive reasons for judgment rendered by Mr. Justice Rand, he made a number of statements which are of general application. Amongst these is the following which occurs at page 266:
The general principle of immunity from legal processes in the broadest sense in what may be called the host country of public property of a foreign state has been given its authoritative statement for Canada by Duff C.J. in the Foreign Legations Reference, 1943 S.C.R. 208. There, as here, he was dealing with taxation under general language in which only the interpretation of the statute was in question. The significant aspect of the matter examined by him was that of the theory on which the immunity is to be placed. In the early considerations given it, the idea of exterritoriality, the physical
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projection of one sovereignty within the borders of another, arose probably from one of its earliest examples, that of a public vessel entering a foreign port. But as new contacts and relations between states developed, the multiplied situations appearing rendered necessary a more realistic and flexible conception. On p. 218 of his reasons, after quoting a passage from Vattel on the immunities of an ambassador’s residence, which includes the qualification in the application of the rule, ‘at least in all the ordinary affairs of life’, Duff C.J. observes, on the latter, that it must be read ‘as excluding the fiction of exterritoriality in its extreme form’. The notion was, in his view, finally rejected by the Judicial Committee in Chung Chi Cheung v. The King, 1939 A.C. 160; and reverting to it at p. 230 he repeats: ‘This fiction of exterritoriality must be disregarded.’
…What is substituted is the conception of an invitation by the host state to the visiting state. That is the core of what was laid down by Marshall C.J. in The Schooner Exchange v. M’Faddon et al., (1812) 11 U.S. (7 Cranch) 116, which Duff C.J. adopts. The fundamental attitude which states adopt towards each other is the recognition and observance of individual sovereignty, that is, the acknowledgment of the absolute independence of each; and on this basic footing their intercourse is conducted. When one state admits within its boundaries a foreign sovereign or his representative, the terms of that entry are to be gathered from the circumstance of the invitation and its acceptance. In the language of Marshall C.J. at pp. 139 and 143:
A sovereign committing the interests of his nation with a foreign power, to the care of a person whom he has selected for that purpose, cannot intend to subject his minister in any degree to that power; and, therefore, a consent to receive him, implies a consent that he shall possess those privileges which his principal intended he should retain…
(The) extent (of the implied consent) must be regulated by the nature of the case, and the views under which the parties requiring and conceding it must be supposed to act.
In the absence of something special or unusual, when a visiting sovereign steps upon the foreign soil he does so free from any submission to its immanent law; from that he remains insulated; and the
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recourse against what may be considered to be an infringement of the privileges of the invitation becomes a matter for diplomatic and not legal adjustment. In the language of Marshall C.J. at pp. 138-9, quoted by Duff C.J. at p. 215:
The assent of the sovereign to the very important and extensive exemptions from territorial jurisdiction which are admitted to attach to foreign ministers, is implied from the considerations that, without such exemption, every sovereign would hazard his own dignity by employing a public minister abroad. His minister would owe temporary and local allegiance to a foreign prince, and would be less competent to the objects of his mission. A sovereign committing the interests of his nation with a foreign power, to the care of a person whom he has selected for that purpose, cannot intend to subject his minister in any degree to that power; and, therefore, a consent to receive him, implies a consent that he shall possess those privileges which his principal intended he should retain—privileges which are essential to the dignity of his sovereign, and to the duties he is bound to perform.
On the same page there is a pertinent quotation from Vattel reinforcing the same view which it is unnecessary to reproduce.
Freedom from the coercion of the public law is coextensive with the requirements of the purpose for which the entry is made. In general, the immunity of a sovereign, his ambassadors, ministers and their staffs, together with his and their property, extends to all processes of Courts, all invasions of or interferences with their persons or property, and all applications of coercive public law brought to bear affirmatively, including taxation.
The reasons for judgment of Mr. Justice Rand were expressly endorsed by Mr. Justice Abbott.
Some of the thoughts expressed by Mr. Justice Rand in the Saint John case supra, find an echo in the early English decision in The Charkeih[5], where Sir Robert Phillimore said at page 97:
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, but 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
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functions of the representatives of a foreign state;… It is thus apparent that immunity from the jurisdiction of our courts on the ground of sovereign immunity does not necessarily preclude the enforcement of a just demand through other channels.
I do not find it necessary in the present case to consider the statements made by Lord Atkin in Compania Naviera Vascongardo v. S.S. Cristina[6] and in Rahimtoola v. Nizam of Hyderabad[7], where he expressed the view that sovereign immunity applied in respect of commercial transactions, because I think the present circumstances are governed by the decision of this Court in Flota Maritima Browning de Cuba S.A. v. Republic of Cuba[8], where it was said of the ships whose seizure gave rise to the issue before the Court:
All that can be said is that they are available to be used by the Republic of Cuba for any purpose which its government may select, and it seems to me that ships which are at the disposal of a foreign state and are being supervised for the account of a department of government of that state are to be regarded as ‘public ships of a foreign state’ at least until such time as some decision is made by the sovereign state in question as to the use to which they are to be put.
Similarly in the present case, with the greatest respect for those who hold a different view, I am of opinion that the contract here sought to be enforced to which the appellant’s diplomatic representative and one of its departments of government were parties, was a contract made by a foreign sovereign in the performance of a public act of state and that whatever view be taken of the doctrine of sovereign immunity, it was a matter in respect of which the Republic of the Congo cannot be impleaded in our courts. I would allow this appeal on that ground.
I have proceeded on the assumption that the record before this Court is limited to the respondent’s declaration and the admissions made by the parties, but I think I should deal with the contention advanced on behalf of the respondent
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that judicial notice should be taken of a document entitled “Universal and International Exhibition of 1967 Montreal—General Rules and Regulations”. This document was tendered by the respondent for the first time in this Court and was not mentioned by any of the judges in the courts below, it does not purport to be issued under the authority of any statute or order in council, it is undated, unsigned and was not produced by any witness so that its source is unknown.
The document to which I refer was objected to by counsel on behalf of the appellant but it is suggested that the force of this objection is weakened by the fact that the document is referred to in the appellant’s factum. It is, in my view, important to understand that no act of counsel can be relied upon as enlarging the category of matters of which this Court will take judicial notice.
It is suggested, however, that judicial notice should be taken of the Rules and Regulations in question because mention is made in s. 4(3) of the Canadian World Exhibition Corporation Act, supra, of “The General Rules and Regulations of the Exhibition approved on November 13, 1962 by the Council of the Bureau of International Exhibitions”. There is, however, no evidence whatever that the Rules and Regulations now tendered are the ones referred to in the statute and in any event the reference there made has to do with the by-laws of the Canadian World Exhibition Corporation and can have no bearing on the matter here at issue.
It is further contended that the Rules and Regulations in question are in some fashion to be regarded as a treaty on the ground that “Expo 67” was organized under the umbrella of the constitution relating to international exhibitions of November 22, 1928 as modified by protocol on May 10, 1948. I can find no evidence of the Exhibition having been so organized, (although this may well be the case), but even if the Rules and Regulations are to be regarded as a treaty, this does not of itself convert them into material of which this Court can take judicial notice.
Although no reliance was placed by the Court of Appeal on the argument advanced by the learned trial judge to the effect that the appellant
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had submitted to the authority of the Quebec courts by entering a declinatory exception in accordance with the practice established in that Province, I think it perhaps desirable to state that I cannot accept the proposition that a defendant can be taken to have submitted to the jurisdiction by entering a plea to the effect that it is not subject thereto, and in any event I see no merit in this argument because of the long line of cases which establishes that a sovereign state is not to be held to have submitted to a foreign jurisdiction unless the submission be made in the face of the court, coupled with a request that such jurisdiction be exercised. (See Duff Development Company v. Government of Kelantan[9]).
For all these reasons I would allow this appeal, set aside the judgments of the Court of Appeal and of the Superior Court and allow the declinatory exception. The respondent’s action is accordingly dismissed. The appellant will have its costs throughout.
The judgment of Hall and Laskin JJ. was delivered by
LASKIN J. (dissenting)—This appeal arises out of a suit by an architect to recover from the Government of The Democratic Republic of Congo fees for his services. The services were those provided in the planning of a national pavilion which that country proposed to erect on an allotted site as a participant in the Universal and International Exhibition held in Montreal in 1967. Having been impleaded in the Superior Court of Quebec, Montreal District, the Government challenged the suit by a declinatory exception which was dismissed by Leduc J., and the dismissal was affirmed unanimously by the Quebec Court of Appeal[10]. The interlocutory proceedings thus became the vehicle for the determination of the basic issues in the litigation, namely, the immunity of the foreign Government from suit and from the jurisdiction of the Quebec Superior Court.
The reasons upon which Leduc J. and the Quebec Court of Appeal proceeded were not fully concordant. The former purported to find, in a
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formal admission by the foreign Government that it had accredited its Chargé d’Affaires as its Commissioner General to the Montreal Exhibition, that the transaction with the architect amounted to a private law transaction cognizable before the Quebec Superior Court. In taking this view, Leduc J. accepted what he regarded as an evolved distinction in the law of sovereign immunity between public acts of a State and acts of a private character. He also found that invocation by the foreign Government of the processes of the Quebec Code of Civil Procedure amounted to a submission to the jurisdiction of the Superior Court. I take this as meaning that there was a waiver of immunity, assuming it existed, through an attributed consent to be impleaded.
The Quebec Court of Appeal flatly rejected the doctrine of absolute sovereign immunity, applied by this court in Dessaulles v. Republic of Poland[11], and declared for a principle of restrictive sovereign immunity in accordance with developments in the domestic courts of some European countries and consonant with the executive policy of the United States reflected in the Tate Letter of 1952 (26 U.S. Department of State Bulletin 984). It found leeway to depart from this court’s judgment in Dessaulles by referring to allegedly contrary indications in the later judgment in Flota Maritima Browning de Cuba S.A. v. Republic of Cuba[12]. It also went on to hold that it was incumbent on the foreign Government in this case to establish the circumstances in support of its claim of immunity. On the view of Owen J., this followed from the fact that immunity was a derogation from the general rule of domestic jurisdiction; and it also followed, in the view of the court as a whole, from the denial of a rule of absolute immunity. Since the court was of the opinion that no proof had been offered by the foreign Government to establish its claim of immunity, it held that the declinatory exception had been properly dismissed. The court’s position on the burden of proof arising under a doctrine of restrictive immunity relieved it of any need to
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consider the situations in which immunity would be recognized. Its bare references to public and private acts, and to acts jure imperii and acts jure gestionis, left those situations at large.
The one issue in this appeal is whether a claim of immunity, be it on an absolute basis or on a restrictive basis, must be conceded under the declinatory exception taken by the appellant. Before turning to that, I wish to dispose of the alternative ground of waiver of immunity relied on by Leduc J. In my opinion, there is no basis for finding waiver in the facts relied on by the learned judge. Resort to applicable rules of procedure for the purpose of asserting immunity and contesting jurisdiction cannot be converted into a submission to the court’s authority to deal with the merits. English law has been consistent in holding that waiver and submission to jurisdiction on the part of a foreign sovereign State must, to be effective, be made in the face of the court and at the time the court is asked to exercise its jurisdiction: see Duff Development Co. v. Government of Kelantan[13]; Kahan v. Pakistan Federation[14]; a previous agreement to submit, although part of a contract sued upon, is not binding upon the foreign government which may resile from it. Whether or not the time may come when waiver by contractual agreement will be recognized as effective (as proposed, for example, by the Restatement (Second), Foreign Relations Law of the United States (1965), s. 70), the present case may be disposed of on this issue without relying on the English rule, which is also the prevailing rule in the United States. There was here no contractual submission, but, from the outset, a resistance to jurisdiction, subject to the courtesy of an appearance to contest it.
I begin my consideration of the central point in this case by noting that we are not concerned here with any claims to property, tangible or in-
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tangible, by any foreign State or agency thereof. Nor are we concerned with the status of any corporate or other body alleged to be an organ of a foreign State. There is in the present case a formal admission by the respondent that the Democratic Republic of Congo is a sovereign State. This determines its status for the purposes of this case without the necessity of seeking a certificate from the executive. No question is raised as to service of process, and hence only amenability to jurisdiction remains.
There is no doubt that there has been a shift in the positions of the domestic courts of various countries from the doctrine of absolute immunity, which prevailed through the nineteenth century and into the twentieth, to a restrictive doctrine. The Tate Letter enumerates the countries which have departed from the absolute view of immunity, and a recent text-book, O’Connell, International Law (2nd ed. 1970), p. 844 states that “the absolute view is not sanctioned by international law” and that “at the present time only English and perhaps Russian law reflects to any extent the traditional doctrine”. This text-writer’s assessment does not appear to embrace Canadian law (or even that of Australia, which is his base) unless he considers the two countries to be governed by the English rule. For Canada at any rate, the question is one for this court, subject to any binding Canadian treaty on the subject.
The restrictive view adopted in the Tate Letter is, it must be remembered, not a rule of law but a policy guide for the United States State Department. It has legal effect, however, through the conclusive force which the courts of the United States give to a suggestion made to the court by the State Department through the Justice Department that a claim of immunity be “recognized and allowed”: see Compania Espanola de Navegacion Maritima S.A. v. The Navemar[15]; Ex parte Peru[16]. The practice of a “suggestion” by the executive to the courts goes back to the judgment of Mar-
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shall C.J. in The Schooner Exchange v. M’Faddon[17]. I am not aware of any such “suggestion” practice in Canada. The executive here has gone no farther than to certify sovereign status, but, of course, under an absolute doctrine of immunity that would, in a case like the present one, be sufficient.
In the United States, the courts have leeway only where the State Department refuses to make a suggestion of immunity, and they have both granted and refused immunity in such a situation: see Puente v. Spanish National State[18], cert. denied[19] (immunity granted in a suit for legal fees on letter from Spanish Ambassador claiming immunity); Victory Transport Inc. v. Comisaria General de Abastecimientos y Transportes[20], cert. denied[21] (immunity refused in a suit to compel arbitration where agreed to under charterparty entered into by arm of foreign government). The Victory Transport case is apparently the first in which a United States federal court has unequivocally adopted the restrictive view of immunity, which had been a State Department policy even before being formalized in the Tate Letter: see O’Connell, op. cit., supra, at p. 856. There were indications before the Victory Transport case that the courts of the United States would accept the restrictive view as the governing one: see National City Bank of New York v. Republic of China[22], and this now seems to be so.
The position in Great Britain is not, or not yet, clearly in the direction of a restrictive view. The flat assertion of the absolute view in The Cristina[23], by Lord Atkin became a much quoted paragraph in later English and Canadian cases. However, in Sultan of Johore v. Abubakar, Tunku
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Aris Bendahara[24], Viscount Simon said, for the Privy Council, that “Their Lordships do not consider that there has been finally established in England… any absolute rule that a foreign independent sovereign cannot be impleaded in our courts in any circumstances” (at p. 1268). This could well refer, for example, to a probable qualification in respect of the use of property, or to competing claims to some chose in action rather than to a case like the present one where a foreign State is directly impleaded in a contract type of action. It does, however, leave the general question of immunity open to reconsideration.
The House of Lords returned to the issue of immunity in Rahimtoola v. Nizam of Hyderabad[25], which involved a contest between two claimants, one a former personal sovereign and the other a foreign State, in respect of a bank account in England. Viscount Simonds, who delivered the leading judgment, accepted the statement of the absolute view made by Lord Atkin in The Cristina. Lord Denning apart, the other Law Lords in the case proceeded on the same view so far as the issue of immunity concerned the direct impleading of a foreign sovereign or arose out of a claim to property