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Arab Monetary Fund v Hashim and others, 21 February 1991, United Kingdom House of Lords, 85 ILR 1

Kirsten Schmalenbach

Relevance of the case

With the Arab Monetary Fund (AMF) case the House of Lords set a precedent for the recognition of the domestic legal personality of ‘foreign’ international organizations to which the United Kingdom is neither a party nor the host state. Instead of proceeding from the notion of an internationally and thus ‘objectively’ existing legal personality of international organizations, the House of Lords took recourse to the United Kingdom’s rules on conflict of laws (international private law) in order to recognize the AMF as a corporate body established under the laws of the United Arab Emirates (UAE). The House of Lords’ reasoning in the AMF case has to be evaluated in the light of the dualistic approach of UK law towards international law1 that had already influenced the decision on the legal personality of the International Tin Council,[1] [2] an international organization to which the United Kingdom was a member. Even though the AMF judgment is the outcome of UK legal peculiarities,[3] it has influenced the reasoning of other domestic courts in the matter of the domestic legal personality of ‘foreign’ international organizations.[4]

I. The facts of the case

The AMF was formed by a 1976 treaty among twenty-one Arab states[5] plus Palestine for the purpose of ‘laying the monetary foundations of Arab economic integration and accelerating the progress of economic development in all Arab countries’.[6] It was designed as a regional counterpart to the International Monetary Fund for the Islamic Middle East. The founding instrument[7] grants the AMF independent legal personality and emphasises that the AMF shall have the right to own assets, enter into contracts, and litigate (the so-called Status Clause).[8] Headquartered in Abu Dhabi in the United Arab Emirates (UAE), the domestic legal personality of the AMF was established by UAE Federal Decree No. 35 of 1977. Investigations by the AMF’s internal auditor into heavy financial losses led to the discovery of bank accounts in Luxembourg in the name of Mr Hashim, the AMF’s former Director General. Mr Hashim was elected President and Director General of the AMF and served in this position from 1977 to 1982. In 1988 Mr Hashim was prosecuted and convicted in the UAE in absentia for fortyseven charges of embezzlement, forgery, and criminal breaches of trust, involving 80 million US dollars. At the time, Mr Hashim lived in the United Kingdom where he faced civil action instituted by the AMF. In the proceedings before the UK High Court, the defendant simultaneously challenged the domestic legal personality of the AMF and its capacity to institute legal proceedings before the UK High Court. The plaintiff AMF countered with two lines of argument. Firstly, English conflict of law rules recognized the existence of legal entities constituted under international law, and secondly, following Rules 171[9] and 174[10] [11] [12] [13] [14] in Dicey & Morris, the Fund was entitled to be recognized as an ordinary juridical entity established under the domestic foreign law of the UAE. Even though Hoffmann J had a clear preference for argument 1,n he found for the plaintiff on the basis of argument 2. This came about because during the proceedings, the plaintiff withdrew argument 1 under the impression that the House of Lords’ International Tin Council (ITC) case anchored the ITC’s domestic legal personality firmly in UK law (i.e. ITC Order of Council of 1972). In recognition of the AMF’s legal personality granted by UAE law, Hoffmann J issued ex parte an order against Mr Hashim comprising an order for disclosure of his worldwide assets and a worldwide ‘Mareva’i2 injunction preventing their dissipation/3 The Court of Appeal however, reversed the High Court judgment on the grounds that in absence of a UK Order in Council granting the AMF domestic legal personality, the plaintiff lacked capacity to sue because it was created by a non-justiciable international treaty/4 The AMF case was referred to the House of Lords which held by majority (Lord Bridge of Harwich, Lord Templeman, Lord Griffiths, Lord Ackner; dissenting: Lord Lowry) that the order of Hoffmann J was to be restored.

II. The legal questions

The key issue of the AMF case is the identification of the proper legal basis for the acknowledgment of the legal personality of a ‘foreign’ international organization within a non-member state. In contrast to non-member states, member states conclude the constituent instrument that not only creates the organization but also attributes to it domestic legal personality. On the basis of this founding treaty member states are obliged to recognize the organization’s domestic legal personality in accordance with the treaty’s status clause.[15] [16] Obviously, this is not valid for non-member states, for whom the ‘foreign’ organization is—at least on a formal level—a res inter alios acta and, in absence of an explicit or implicit recognition, of no legal relevance^6 In the AMF case, the House of Lords was called upon to decide if the lack of an English legal instrument recognizing the domestic legal personality and capacities of the AMF must lead to the denial of its personality. As a solution to this difficult situation that harmonized with the United Kingdom’s dualistic approach to such issues, the House of Lords applied English conflict of law rules that pointed at UAE Decree No. 35 as a source for the AMF’s legal personality. This domestic law centred approach inevitably led to the follow-up question of whether or not international organizations enjoy multiple or parallel domestic legal personalities created by each single domestic legal order of its member states (in case of the AMF over twenty legal orders), a notion which exaggerates the conflict of laws solution to the point of deconstruction.

III. Excerpts

Lord Templeman[...]

I am unable to agree with my noble and learned friend, Lord Lowry, that [UAE] Federal Decree No. 35 only recognised an international organisation and did not create a corporate body. [...] (W)hen sovereign states enter into an agreement by treaty to confer legal personality on an international organisation, the treaty does not create a corporate body. But when the AMF Agreement was registered in the UAE by means of Federal Decree No. 35 that registration conferred on the international organisation legal personality and thus created a corporate body which the English courts can and should recognise. [.]

Although a treaty cannot become part of the law of the United Kingdom without the intervention of Parliament, the recognition of foreign states is a matter for the Crown to decide and by comity the courts of the United Kingdom to recognise a corporate body created by the law of a foreign state recognised by the Crown.[...]

(T)hough the Fund was incorporated by 21 states and has multiple incorporation and multiple nationality there is only one Fund with its head office in Abu Dhabi, one Board of Governors, one Executive Board of Directors and one Director-General. The domicile and residence of the Fund are in the UAE and nowhere else. [...] (T)here is only one Fund to which each of the member states accorded legal personality. [...] The Articles of Agreement which were annexed to the federal decree of the UAE and which thus became part of the law of the UAE are no different from the memorandum and articles of a limited liability company established under the law of England.

It is beyond dispute that if the Fund had been incorporated in the UAE and nowhere else the Fund would have been recognised in this country as a legal personality. If the Fund has been incorporated not only in the UAE but also in a number of friendly foreign states recognised by the government of this country, it still has legal personality and is capable of suing in this country.

[...]

It seems to me that it would be unthinkable for the courts of the United Kingdom applying the principles of comity to reach any other conclusion. It will be observed that the reply of the Foreign and Commonwealth Office stipulates that the international organisation for which recognition is sought must have acquired legal personality and capacity under the laws of one or more member states or the state wherein it has its seat or permanent location. This requirement is necessary because the courts of the United Kingdom cannot enforce treaty rights but they can recognise legal entities created by the laws of one or more sovereign states. A treaty cannot create a corporation but a sovereign state which is party to a treaty can, in pursuance of its obligations accepted under the treaty, create a corporation which will be recognised in the United Kingdom. A member state can create a corporation by signing and ratifying the treaty if in that member state a treaty is self-executing and becomes part of domestic law on signature and ratification. Another member state, such as the UAE, can only create legal personality by the legislative process which was adopted in the case of the AMF Agreement. In the present case the Fund was given legal personality and capacity by the law of the state wherein it has its seat or permanent location. There is every reason why the Fund should be recognised as a legal personality by the courts of the United Kingdom and no reason whatsoever why recognition should be withheld.

[...]

The Tin case left untouched the principle that the recognition of a foreign state is a matter for the Crown and the principle that, if a foreign state is recognised by the Crown, the courts of the United Kingdom will recognise the corporate bodies created by that state. In the Tin case the Tin Council was created a corporate body by the Order in Council. The USA were not a party to the ITC Treaty and did not altogether approve of its functions. But the USA nevertheless recognised the ITC as a corporate body once it had been created by the United Kingdom.

[...]

In the present case the English courts cannot identify and accept the right to sue of an international organisation which sovereign states by the AMF Treaty agreed to create. But the English courts can identify and accept the right to sue of a corporate body created by a sovereign state pursuant to the obligations accepted by that state in the treaty. In the Tin case there was the ITC Treaty, followed by the Order in

Council which created the ITC a corporate body. In the present case there is the AMF Agreement, followed by Federal Decree No. 35 which created the Fund a corporate body. Her Majesty’s Government, through the Foreign and Commonwealth Office, has expressed its willingness to recognise an international organisation which has been incorporated by a foreign sovereign state.

Lord Lowry [...]

At common law, with due respect to learned writers who have sought to maintain a different view, international organisations set up by treaty are not recognised as having legal status in our courts. Parliament’s response to the emergence of such organisations was to pass a series of Acts starting with the Diplomatic Privileges (Extension) Act 1944. Statute law now recognises international organisations as having juridical personality in three instances. The International Organisations Act 1968, in regard to an organisation of which the United Kingdom and any other sovereign power are members, and also in regard to an organisation of which two or more sovereign powers (but not the United Kingdom) are members and which maintains or proposes to maintain an establishment in the United Kingdom, gives power to Her Majesty by Order in Council to ‘confer on the organisation the legal capacities of a body corporate’ and also to confer certain privileges and immunities (consisting, in regard to the second type of organisation, of exemption from tax). [...] A third recognised class consists of those international organisations which have been the subject of special Acts such as the Bretton Woods Agreements Act 1945 and the International Sugar Organisation Act 1973. Viewed as an international organisation, the Fund belongs to a fourth class, which continues to have no legal standing.

[...]

It seems to me to be wholly consistent with Lord Oliver’s approach to have regard to the Arab Monetary Fund Agreement, not as creating rights and obligations enforceable by the English courts, but as casting light on, and indeed determining, the true nature of the independent juridical personality which exists under the laws of the signatory states, including Abu Dhabi and the United Arab Emirates, and under the laws of any other states which adopt the same approach as Swiss law. It was common ground that the recognition of the fund by Swiss law as a juridical person formed no basis for the English courts to treat it as such in accordance with (rule) 171 in Dicey and Morris. I can see no reason why the English courts should adopt a different attitude towards the Abu Dhabi and United Arab Emirates manifestation of the fund and a ‘manifestation’ is what it is: a persona ficta designed solely to give tangibility and visibility to something which would otherwise be intangible and invisible in the eyes of the law. This is wholly different from a foreign municipal juridical person whose existence is fully recognised under English law.

[...]

Before 1944 no international organisation, whatever its assets or trading interests might have been, would have enjoyed legal status in the courts of the United Kingdom. Now, by virtue of the legislation at present represented by the International Organisations Act 1968, the position has altered. But, even if regrettable, it need not be a matter for surprise if our legislation has not moved far enough or fast enough to embrace every international organisation. If the Fund cannot sue here and if that is an unacceptable result, it appears to me that the remedy is by way of legislation to amend the 1968 Act.

I would affirm the order of the Court of Appeal and dismiss the appeal with costs in this House.

IV. Commentary

The legal personality of international organizations under domestic law, consisting of passive and active legal capacities (e.g. the capacity to institute legal proceedings before domestic courts), is an essential prerequisite for the organization to fulfil its functions without interference from outside.[17] Devoid of domestic legal personality, the international organization would be dependent on its member states or other ‘guardians’ to act on its behalf within the domestic legal order, a notion that is evidently inconsistent with the idea of an independent and effective international organization. What appears to be an imperative necessity from the perspective of an international organization (and, as the case may be, its member states) can pose difficulties for domestic courts. Courts may find themselves forced to reject the domestic personality of the suing organization with reference to international law documents that do not explicitly grant domestic personality/[18] Similarly in cases where international treaties do assign to the international organization personality but, in the absence of ratification, the international duty to recognize the personality is not legally binding upon non-member states/[19] In both scenarios, numerous domestic courts have shown their willingness to directly apply international law but fail to identify the forum state’s customary or conventional international duty to recognize the domestic legal personality of the international organization.[20] [21] If under these conditions national legislation is not available that proactively recognizes the domestic legal personality of certain or all international organizations/i a court may decline the capacity of the organization to institute legal proceedings even though the national legal order bears monistic features. In strictly dualistic legal systems, such as that of the United Kingdom, the courts exclusively apply domestic law which transposes international law obligations into the domestic legal order for the purpose of democratic legitimacy and as the expression of legislative supremacy, respectively.[22] [23] [24] [25] [26] Again, legislative tardiness easily results in a detrimental situation for the organization, as Lord Lowry noted.

Irrespective of whether the respective forum state’s legal order authorises courts to apply international law directly or not,23 it is evident that courts of member states are rarely in the awkward position to search in vain for a legal basis of the organization’s domestic legal personality. A range of court cases demonstrate that domestic courts of member states simply refer to the international status clause legally binding upon the forum state, often accompanied by the addendum that the legal personality has been recognized in one way or the other by domestic law.24 The Tin Council case is an example how UK courts follow a strictly dualistic legal approach when discussing the legal personality of an international organization to which the United Kingdom is a member. In the Tin Council judgment of the House of Lords, Lord Templeman uncompromisingly rejected the idea of applying the statute of the Tin Council directly by stressing the non-justiciable nature of unincorporated international treaties even if the United Kingdom is a party to the treaty. Consequently the domestic legal personality of the Tin Council was the direct consequence of domestic legislation, that is the Order in Council pursuant to the International Organisation Act of 1968. Given that courts of member states rarely suffer from a shortage of international instruments or domestic legislation that indicate the member state’s recognition of the organization’s legal personality under domestic law, references to a customary obligation of member states to that effect are rarely made.”

It is evident that courts of non-member states are in a much more challenging position if the domestic legal personality of a ‘foreign’ international organization is of decisive weight in litigation^6 The AMF case illustrates the struggle for both a legally sound and pragmatic solution. In 1978, about ten years before the AMF litigation, the general practical relevance of the legal personality of ‘foreign’ international organizations prompted an inquiry from the Bank of England to the Foreign and Commonwealth Office in 1978. The Bank of England wanted to clarify the government’s position concerning the legal personality and capacity in English law of ‘entities set up by a group of foreign sovereign states by a treaty’. The Minister of State for the Foreign and Commonwealth Office replied:[...] a bank or other entity would enjoy legal personality and capacity in this country, without any formal statement by or on behalf of Her Majesty’s Government, in the same way and to the same extent as any other banking, commercial or other trading organisation established in a country other than the United Kingdom and enjoying legal personality and capacity in that country. It is considered that the legal personality and capacity in this country of such a bank or other entity would be acknowledged by the English Courts [...]27

This executive statement sketches out the path followed by the House of Lords in the AMF case,28 which was at the same time constrained by the domestic law approach of its recent Tin Council judgment of 1989. Given the lack of domestic legislation conferring legal capacities to the organization in question, the English conflict of laws rules authorizes British courts to apply foreign status laws. In the light of the preceding Tin Council jurisprudence, it came as no surprise that the House of Lords considered the foreign domestic conferment of the AMF’s legal capacities as crucial, not the ‘foreign’ international status rules (i.e. the AMF Articles of Agreement). While the AMF- Articles of Agreement are non-justiciable before British courts, the United Kingdom has internationally recognized the host state of the AMF’s headquarters, namely the UAE, and thus its laws. Hence the English conflict of laws rules allow UAE Decree No. 35 on the privileges and immunities of the AMF as a source of the organization’s legal capacity to institute legal proceedings in the United Kingdom.

The House of Lords’ approach is without doubt a pragmatic solution” It respected the expectations of the British government with regard to the acknowledgement of foreign organizations and left the ‘self-perception’ of the AMF as well as the ‘dignity’ of its member states intact. The adequacy of the judgment is, however, an entirely different matter. The most often voiced criticism of the judgment is that the House

OPEC could be legally served with process. Since the plaintiff and its counsel admitted that OPEC could not be and had not been legally served, the court dismissed OPEC from the lawsuit and out of the case entirely. However, reference can be also made to several cases where national courts explicitly or implicitly granted domestic legal personality to international organizations the forum state was not a member of: In Re Jawad Mahmoud Hashim (n. 4); International Tin Council v Amalgamet Inc., Supreme Court New York City, judgment of 25 January 1988, 524 NYS 2d 971 (NY Supp. Ct). In the case In re Poncet, Swiss Federal Tribunal, judgment of 12 January 1984, [1948] 15 ILR 346 the Swiss Federal Court had admitted the UN as a defendant—however—without an argument. See also: C.F. Amerasinghe, Principles of the Institutional Law of international Organizations (2nd edn, Cambridge, Cambridge University Press 2005), at p. 71f with further references.

  • 27 United Kingdom Materials on International Law’, (1978) 49 British Yearbook of International Law 329, 347.
  • 28 Hoffmann J also referred to this statement before finding that the AMF existed as a legal person under English Law (Arab Monetary Fund (No. 3), High Court, judgment 14 November 1989, [1990] 3 WLR 139, at 146f.
  • 29 See also Reinisch/Wurm (n. 3), at p. 110.

of Lords ignored an international reality,[27] [28] [29] [30] [31] [32] that is the AMF being an international actor and as such concluding contracts and fulfilling its functions in the real world which is geographically not necessarily confined to the territory of its member states. Indeed there is room for the argument that the British Government has implicitly recognized the international legal personality of the AMF and other ‘foreign’ international organizations in absence of an explicit denial. Another line of reasoning proceeds from the equally undisputable fact that international organizations are objective real life phenomena even for non-member states. Proceeding from this observation, Dame Rosalyn Higgins heavily criticised the AMF judgment as ‘fanciful’, because Lord Templeman searched for a piece of domestic law ‘creating’ (not even recognizing) the legal status of the organization and thus its existence under domestic law/*1 This criticism is especially obvious for those who advocate the objective international legal personality of international organizations*2 which transcend the dichotomy of member and non-member recognition and non-recognition. Irrespective of whether the international personality of the organization is either considered as implicitly recognized in consequence of executive action or as objectively existing as a real world phenomenon, the existence of domestic legal personality is easy to infer from the undisputed international personality: the latter is derived from the former given that both personalities are functionally linked and thus inseparable. Following on from this notion, domestic laws recognizing the domestic legal personality and capacities of international organizations have only declaratory value because the source of the legal status is international law alone.33

The theory of the declaratory character of the national conferment of domestic legal personality has its merits*4 but must necessarily fail to convince courts that adhere to the non-justiciable nature of international law without exception, as the House of Lords did. However, it is worth mentioning that Hoffmann J, as the judge of the court of first instance, leaned towards the first argument of the AMF counsel, later withdrawn in the wake of the Tin Council judgment, according to which English law recognizes the existence of legal entities constituted under international law.*5 This first submission had its inspirational source in the above cited answer of the Minister of State for Foreign and Commonwealth Office to the Bank of England of 1978: the English conflict of laws rules not only allow courts to apply the laws of foreign sovereign states that create legal persons but also international law when a group of foreign states create an international organization and bestow it with legal capacities in foro domestico. Naturally, this executive opinion was not binding on the House of Lords, whereas the latter’s diverging ratio in the AMF decision binds all lower English courts.[33] [34]

The ‘foreign’ domestic law solution of the House of Lords, which was duly followed in the Westland Helicopters case3? and served as a model for a US bankruptcy court in a subsequent case against Mr. Hashim/[35] produced a reasonable and practical result for the AMF and other ‘foreign’ international organizations that choose the United Kingdom as a place of business and legal action. Its weakness, however, lies not only in its blindness to international law, but also in the multitude of foreign domestic status laws that confer domestic legal personality and capacities to the organizations. The notion of ‘pathological’ multiple domestic legal personalities of one and the same organization deconstruct the foreign domestic law approach for those who consider the international AMF Article of Agreements the proper source of domestic personality and capacities. As the case may be, on the basis of their line of reasoning the House of Lords also rejected the ‘multiple personality’ notion. Even if a multitude of states have accorded legal personality to the international organization under their laws, the organization remains one and the same in the eyes of the House of Lords.3[36] The multitude of domestic status laws only means that there is more than one factual basis upon which UK courts can recognize the legal personality of that organization under domestic laws. From this, it follows that domestic laws do not create the organization as a ‘corporate body’ within the national legal order but merely for the purpose of legal personality and capacities treat the organization as if it were one.[37]

  • [1] See A. Aust, Modern Treaty Law and Practice (2nd edn, Cambridge, Cambridge University Press2007), pp. 189ff.
  • [2] Re International Tin Council, High Court, Chancery Division, judgment of 22 January 1987, [1988]77 ILR 18-41; Court of Appeal, judgment of 27 April 1988, [1989] 80 ILR 181-90.
  • [3] cf. A. Reinisch/J. Wurm, ‘International Financial Institutions Before National Courts’, in: D.Bradlow/D. Hunter (ed.), International Financial Institutions and International Law (Alphen aan denRijn, Kluwer Law International 2010), 103-36 (at 109).
  • [4] See for instance In Re Jawad Mahmoud Hashim et al., United States Bankruptcy Court, District ofArizona, judgment of 15 August 1995, [1997] 107 ILR 405, in which the US court held (at 426) that ‘Theissue to which comity is given effect is whether the AMF is a juridical person (a corporation, a personaficta, an entity capable of legal battle) under UAE law [...]. Once this has been decided, capacity followsunder American law as a matter of “customary” law.’
  • [5] Jordan, United Arab Emirates, Bahrain, Tunisia, Algeria, Djibouti, Saudi Arabia, Sudan, Syria,Somalia, Iraq, Oman, Qatar, Kuwait, Lebanon, Libya, Egypt, Morocco, Mauritania, Yemen, and Comoros.
  • [6] Preamble of the Articles of Agreement of the Arab Monetary Fund of 27 April 1976.
  • [7] The Articles of Agreement of the Arab Monetary Fund, in force since 13 February 1977.
  • [8] Article 2 of the Articles of Agreement.
  • [9] Rule 171: The existence or dissolution of a foreign corporation duly created or dissolved under thelaw of a foreign country is recognised in England. Dicey and Morris on the Conflict of Laws (11th edn,London, Stevens 1987), Vol. 2, p. 1128.
  • [10] Rule 174: The capacity of a corporation to enter into any legal transaction is governed both by theconstitution of the corporation and by the law of the country which governs the transaction in question.All matters concerning the constitution of a corporation are governed by the law of the place of incorporation. Dicey and Morris (n. 9), p. 1134.
  • [11] Arab Monetary Fund (No. 3), High Court, judgment 14 November 1989, [1990] 3 WLR 139, 143(Hoffman J).
  • [12] A temporary injunction that freezes the assets of a party pending further order or final resolutionby the court; named after: Mareva Compania Naviera SA v International Bulkcarriers SA (1975) Court ofAppeal, Civil Division.
  • [13] Arab Monetary Fund (No. 3), High Court, judgment of 14 November 1989, [1990] 3 WLR 139, at p142 (Hoffman J).
  • [14] Arab Monetary Fund (No. 3), Court of Appeal, judgment of 30 April 1990, [1990] 3 WLR 139, at 166;see also: G. Marston, ‘The Arab Monetary Fund: Legal Person or Creature from Outer Space?’, (1991) 50Cambridge Law Journal 211, 219.
  • [15] If the founding treaty does not explicitly impose an obligation on the member states of the international organization to grant domestic legal personality to the organization, some scholars argue thatit is generally accepted that they are obliged under customary law to do so (see T. Gazzini, ‘Personalityof International Organizations’, in: J. Klabbers/A. Wallendahl (eds), Research Handbook on the Law ofInternational Organizations (Cheltenham, Edward Elgar 2011), pp. 33-55, at p. 45 with further references).
  • [16] cf. D. Sarooshi/A. Tzanakopoulos, ‘United Kingdom’, in: A. Reinisch (ed.), The Privileges andImmunities of International Organizations in Domestic Courts (Oxford, Oxford University Press 2013),pp. 275-90, p. 284.
  • [17] As A. Reinisch, International Organizations Before National Courts (Cambridge, CambridgeUniversity Press 2000), indicates at p. 37f, domestic legal personality ‘is a prerequisite not only for entering into legal relationships, but also for being a party to legal proceedings before domestic courts.’
  • [18] See in relation to intergovernmental fishery bodies J.E. Carroz/A.G. Roche, ‘The ProposedInternational Commission for the Conservation of Atlantic Tunas’, [1967] 61 American Journal ofInternational Law 697f.
  • [19] cf. Reinisch (n. 17), at p. 41f.
  • [20] For the first scenario see for example UNRRA v Daan, District Court Utrecht, judgment of 16 June1948, [1949] 16 ILR 337; Branno v Ministry of War, Italian Court of Cassation, decision of 14 June 1954,[1955] 22 ILR 756 (deriving the legal personality of NATO under Italian Law from its international personality); see also H. Schermers/N. Blokker, International Institutional Law (5th edn, Leiden, MartinusNijhoff 2011), § 1595ff; for the second scenario see for instance Republique italienne, Ministere italien destransports et Chemins de fer de l’Etat italian v Beta Holding et Autorite de sequester de Bale Ville, SwissFederal Court, 1966, as discussed in L. Caflisch, ‘La pratique suisse en matiere de droit internationalpublic 1974’, [1975] 31 ASDI 225.
  • [21] See for example the British Copyright, Designs and Patents Act of 1988, s. 168, para 4: ‘An international organisation to which this section applies (by virtue of Order in Council) shall be deemed tohave, and to have had at all material times, the legal capacities of a body corporate for the purpose ofholding, dealing with and enforcing copyright and in connection with all legal proceedings relating tocopyright.’
  • [22] cf. Re International Tin Council, High Court, Chancery Division, judgment of 22 January 1987,[1988] 77 ILR 18-41, at 26.
  • [23] Regarding the direct application of international law in order to establish the domestic legal personality of an organization see for instance Balfour, Gutherie & Co. et al. v United States et al., United StatesDistrict Court N. D. California, judgment of 5 May 1950, [1950] 17 ILR 323 (resorting directly to art. 104UN Charter: at p. 324); and Manderlier v Organisations des Nations Unies and Etat Belge, Brussels CivilTribunal, judgment of 11 May 1966, [1972] 45 ILR 446 (also based on art. 104 UN Charter: at p 450); seealso Reinisch (n. 17), at p 47f.
  • [24] For Belgium: Mandalier v Organisation des Nations Unies and Etat Belge (Ministre des AffairesEtrangeres), Civil Tribunal Brussels, judgment of 11 May 1966, [1972] ILR 446-55: with reference to art.104 UN Charter; Centre pour le developpement industriel v X, Civil Tribunal Brussels, Judgment of 13March 1992, [1992] Actulite du droit 1377 at 1381: with reference to the Headquarters Agreement withBelgium, see Reinisch (n. 17), at p. 40. For Austria: OPEC-Fonds Case, Austrian Supreme Court, 10 Ob 53/04y, Judgment of 14 December 2004: with reference to the Headquarters Agreement with Austria. For TheNetherlands: UNRRA vDaan, District Court Utrecht, Judgment of 16 June 1948, [1949] 16 ILR 337: withreference to the agreement establishing UNRRA. For Japan: Shigeko Ui v United Nations University,Tokyo District Court, Judgment of 21 September 1976, The Japanese Annual of International Law 23(1980), p. 196 following: with reference to Headquarters Agreement.
  • [25] See further Reinisch (n. 17), at p. 42ff.
  • [26] In International Association of Machinists v OPEC, District Court of California, judgment of 18September 1979, 477 F. Supp. 553 (C.D. Cal. 1979) the court took an easy way out: it had doubts whether
  • [27] cf. Higgins, Problems and Process: International Law and How We Use It (Oxford, Clarendon Press1994) p. 47f.
  • [28] Higgins (n. 30), p. 207.
  • [29] For example Seyersted, ‘Objective International Personality of Intergovernmental Organizations,Do Their Capacities Really Depend upon the Conventions Establishing Them?’, (1964) 34 NordiskTidsskriftfor International Ret 1-112.
  • [30] Advocates of this declarative view are for instance K. Ahluwalia, The Legal Status, Privileges andImmunities of Specialized Agencies of the United Nations and Certain Other International Organizations(The Hague, Nijhoff 1964), p. 60; C. Jenks, ‘The Legal Personality of International Organizations’, (1945)22 British Yearbook of International Law 267, 270ff.
  • [31] But is not uncontested, cf. Reinisch (n. 17), at p. 60 with further references.
  • [32] Arab Monetary Fund (No. 3), High Court, Judgment of 14 November 1989, [1990] 3 WLR 139 at 143(Hoffmann J).
  • [33] Miliangos v George Frank (Textiles) Ltd, House of Lords, judgment of 1 January 1975, [1976] AC 443,[1975] 1 WLR 758.
  • [34] Westland Helicopters Ltd v Arab Organisation for Industrialisation, High Court, Queens BenchDivision, judgment of 3 August 1994, [1995] 10 ALQ 115 at 125ff.
  • [35] In Re Jawad Mahmoud Hashim (n. 4).
  • [36] But see Lord Templeman’s references to the Tin case (n 22) in which he stated that the Tin Councilwas ‘created a corporate body’ by an Order in Council, [1991] 1 ALQ 90, 96.
  • [37] See G. Marston, ‘The Arab Monetary Fund: Legal Person or Creature from Outer Space?’, (1991) 50Cambridge Law Journal 211 (n. 14), 220. Note also that this ‘sui generis personality’ generates the effectthat UK law governing UK corporations will not per se be applicable directly to international organizations, see D. Sarooshi/A. Tzanakopoulos (n. 16), at p. 286.
 
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