Belhaj & Anor v Straw & Ors

The act of state doctrine may ordinarily preclude an English court from deciding a claim which requires it to rule on the legality of sovereign acts of a foreign state within that state’s territory. It does not, however, bar a properly justiciable private-law claim merely because adjudication may affect a foreign state’s interests.

A public-policy limitation applies where grave alleged violations of fundamental human rights and clearly established international law require investigation. Torture and unlawful rendition, coupled with clear legal standards, claims against United Kingdom officials, and the absence of an alternative remedy, may outweigh comity and asserted risks to foreign relations. The doctrine does not apply to a foreign state’s acts outside its own territory in this context.

For tort, the Private International Law (Miscellaneous Provisions) Act 1995 generally selects the law of the place of the relevant events or injury. The presumption that foreign law resembles English law cannot displace that choice-of-law inquiry.

The appellants alleged that United Kingdom ministers, intelligence officers and agencies participated in their unlawful rendition from Asia to Libya in 2004. They alleged detention, torture and other mistreatment by officials of China, Malaysia, Thailand, the United States and Libya. Their pleaded claims included false imprisonment, conspiracy, trespass to the person, misfeasance in public office and negligence.

Simon J held that foreign states were not indirectly impleaded and rejected state immunity. He nevertheless struck out most claims under the act of state doctrine, while holding that the law of the places where the alleged conduct and injuries occurred governed the surviving claims.

The appellants appealed the rulings on act of state and applicable law. The respondents’ notice sought to uphold the strike-out on state-immunity grounds. The central issue was whether the alleged involvement of foreign officials prevented adjudication of the claims against United Kingdom defendants.

1. Appeal allowed in part. The appeal against the act-of-state ruling was allowed. The respondents’ notice relying on state immunity was dismissed. The appeal concerning applicable law was dismissed.

2. State immunity did not bar the proceedings. The foreign states and their officials were not parties, and the claim did not concern their property or seek to impose a judgment upon them. Indirect impleader is confined to the established categories. It does not arise merely because the court must decide whether foreign officials acted unlawfully. The broader construction would improperly collapse the distinct doctrines of state immunity and act of state.

3. The pleaded claims required a ruling on the unlawfulness of the conduct of the alleged foreign perpetrators. The Kirkpatrick limitation therefore did not assist the appellants. The alleged conduct had the character of sovereign conduct for act-of-state purposes, despite the allegations of torture.

4. Nevertheless, the claims fell within the established public-policy limitation to the act of state doctrine. The allegations concerned grave violations of human rights and international law, including torture and unlawful rendition. The relevant standards were clear and judicially manageable. The defendants were United Kingdom officials and bodies with no immunity before English courts, and absent English proceedings the allegations were unlikely to receive judicial examination. Those considerations outweighed the asserted risk of harm to foreign relations and national security. The same conclusion meant that the doctrine could not outweigh the appellants’ right of access to a court under Article 6.

5. Independently, the doctrine did not apply to the alleged conduct of United States officials in Thailand, Libya and on a United States-registered aircraft, because that conduct was outside United States territory.

6. The court upheld the applicable-law ruling. Under sections 11 and 12 of the Private International Law (Miscellaneous Provisions) Act 1995, the relevant causes of action were governed by the laws of the places where the alleged detention, mistreatment and injury occurred. There was no strong basis for displacing that rule in favour of English law. The evidential presumption of similarity between foreign and English law did not avoid the need to plead and prove the material foreign law, subject to the possible public-policy safeguard in section 14.

• Court of Appeal (Civil Division): Allowed the appeal on act of state, dismissed the respondents’ notice based on state immunity, and dismissed the appeal on applicable law: [2014] EWCA Civ 1394.
• High Court, Queen’s Bench Division (Simon J): Rejected state immunity but held that act of state barred most claims and struck them out. It held that, subject to possible reliance on section 14 of the Private International Law (Miscellaneous Provisions) Act 1995, the relevant foreign laws governed the surviving claims.