Points of law

1) In a case to which the State Immunity Act did not apply it was necessary to apply the common law of State immunity, which incorporated the distinction made in customary international law between acts iure imperii and acts iure gestionis;

2) In determining whether a contract of employment was an act iure imperii or iure gestionis, it was necessary not only to look at the nature of the a contract, but to ask the following questions:
a) Was the contract of a kind which a private individual could enter into?
b) Did the performance of the contract involve the participation of both parties in the public functions of the foreign State, or was it purely collateral to such functions?
c) What was the nature of the breach of contract or other act of the foreign State giving rise to the proceedings?
d) Will the investigation of the claim by the Tribunal involve investigation into the public or sovereign acts of the foreign State?

3) The plaintiff’s employment as a clerical officer in the diplomatic mission of a foreign State would involve his participation in the public acts of a foreign sovereign. His dismissal concerned the performance of a public function i.e. the running of diplomatic mission. An investigation into the fairness of that dismissal would involve the Court in an investigation of, and interference with, a public function of a foreign sovereign.

Summary of the case

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Sources

64 ILR 352

Additional information (explanations, notes, etc.)

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