Mohamed v Breish & Ors

Under the English one voice doctrine, the court must accept the foreign government recognised by the Crown as the government of that state. Its acts cannot be challenged on the ground that the recognised government was not lawfully constituted under the foreign state’s constitutional law. The doctrine does not prevent the court from determining other questions concerning the validity or effect of an act under foreign law, provided they do not depend on that excluded constitutional challenge. The doctrine’s scope and legal effect are questions for the court, not the executive. A pleading which seeks to impugn an act on the excluded ground is liable to be struck out.

The judgment concerned consequential case management in applications for declaratory relief and the discharge of receiverships over assets of the Libyan Investment Authority. Earlier preliminary-issue judgments had declared that the identity of Libya’s executive authority was a question of English law and that, since at least 19 April 2017, the Government of National Accord and Presidency Council represented that authority.

The respondents sought to challenge the applicant’s appointment as chairman of the Authority. The principal issue was whether that challenge could rely on an alleged failure of the recognised Libyan government to be lawfully constituted under Libyan law. The court also considered the issues suitable for the next substantive hearing and a proposed stay.

1. The court held that recognition under the English one voice doctrine prevents a recognised foreign government’s acts from being impugned in the English court on the ground that the government was not duly or lawfully constituted under local constitutional law. That was the substance of the earlier preliminary-issue determination and applied to Resolution 12, by which the applicant claimed to have been appointed chairman of the Libyan Investment Authority.

2. The court relied on The Arantzazu Mendi and Banco de Bilbao v Sancha. Recognition may be based on de facto effectiveness and does not require approval of the manner in which the foreign government assumed power. The doctrine applies even where the recognised government is not the de jure government under local law and another government is recognised as de jure.

3. The doctrine does not determine every issue of foreign law. The court distinguished between: the existence of a government recognised by the Crown; whether it is lawfully constituted under foreign constitutional law; and whether its purported exercise of power is lawful under foreign law. The second question cannot be used to found a challenge disguised as the third. Independent questions about the validity or effect of an act, which do not depend on the government’s constitutional status, remain open.

4. The effect of the doctrine, and its application in the proceedings, are matters of English law for the court. A recognition decision does not bind the court on unrelated questions, and the possible judicial review of recognition decisions identified in Benkharbouche v Embassy of the Republic of Sudan did not alter the result. Belhaj v Straw did not assist the respondents.

5. The challenge pleaded in paragraph 12.5 of Mr Breish’s position statement, and the corresponding sentence in paragraph 12.6(9)(a), were struck out. Related qualifications to an admitted proposition concerning the interpretation of Law 13 were also struck out. The court declined to grant a stay and directed a further hearing on the remaining issues, including the validity of Resolution 12 under Libyan law, its issuing authority, the composition of the Authority’s board, any handover requirement, and the effect of subsequent appointments.

First-instance consequential and case-management judgment following the court’s preliminary-issue judgments: [2019] EWHC 306 (Comm) and [2019] EWHC 786 (Comm). No appeal is stated.