Entico Corporation Ltd v United Nations Educational Scientific and Cultural Association (UNESCO)

International organisations enjoy the immunity required by the United Kingdom’s obligations under public international law. Treaty provisions conferring broad and unqualified immunity should not be read down by reference to the later European Convention on Human Rights where the obligations may conflict.

Even if Article 6 is engaged, immunity reflecting generally recognised rules of international law pursues a legitimate aim and is not, in principle, disproportionate. The availability of an alternative forum may be relevant, but an effective alternative forum is not an absolute prerequisite. Arbitration under agreed UNCITRAL Rules may provide a reasonable mode of dispute resolution despite the organisation’s non-participation.

Entico claimed damages from UNESCO for an alleged contract to produce a calendar. UNESCO denied that any contract had been concluded and did not acknowledge service. Entico applied for default judgment, but UNESCO’s immunity from suit and legal process had first to be addressed.

Entico challenged the statutory immunity as incompatible with Article 6(1) of the European Convention on Human Rights. The Secretary of State intervened under CPR 19.4A. The central issues were whether the immunity was conditional upon an appropriate mode of dispute settlement, whether arbitration under the UNCITRAL Rules was available, and whether the statutory regime violated Article 6.

1. Application dismissed. Entico was granted leave to amend its Particulars of Claim, but judgment in default against UNESCO was refused because UNESCO retained immunity from suit and legal process.
2. The immunity arose from the United Kingdom’s obligations under the 1947 Convention on the Privileges and Immunities of the Specialised Agencies. Article III, Sections 4 and 5 imposed broad and unconditional obligations to recognise immunity from legal process and interference. Article IX, Section 31 required each specialised agency to make provision for appropriate modes of settlement, but did not make immunity conditional on the court’s assessment of whether the mode was effective or adequate.
3. The Convention had to be interpreted under Articles 31–33 of the Vienna Convention on the Law of Treaties. The court could not read the Convention down by reference to the later European Convention on Human Rights, particularly where the earlier Convention bound substantially more states.
4. Entico had an available mode of dispute resolution. The UNCITRAL Rules permitted unilateral appointment of an arbitrator through the appointing authority and empowered the tribunal to determine objections concerning the existence or validity of the contract and arbitration agreement. The prospect that UNESCO might not participate did not make the arbitration meaningless.
5. It was unnecessary to decide whether Article 6 was engaged. If it was engaged, the immunity pursued the legitimate aim of complying with international law and maintaining comity and good relations. Immunity reflecting generally recognised rules of public international law could not in principle be regarded as disproportionate. Waite and Kennedy did not establish that an alternative forum was an absolute precondition to compatible organisational immunity; in any event, arbitration was available and its inadequacy had not been established.
6. The court therefore held that the statutory regime was not incompatible with Article 6. It was unnecessary to determine Entico’s further heads of relief.