Mohamed v Breish & Ors (Rev 1)

Questions concerning recognition of a foreign government are governed by English law when they arise before an English court. Under the constitutional one voice principle, recognition is an executive prerogative. The court must accept unequivocal notification from the Foreign and Commonwealth Office as a fact of state and cannot investigate whether the recognised government was constituted lawfully under the foreign state’s own law. Where no direct notification exists, the court may infer the government’s identity from relevant dealings and circumstances, including the recognised Somalia factors. The court may determine the recognition issue as a preliminary issue without deciding related questions of foreign law or the claimant’s ultimate entitlement to relief.

The applications arose from continuing receivership orders made over assets and causes of action connected with disputes about the chairmanship of the Libyan Investment Authority. Dr Mahmoud sought declarations that he had been validly appointed Chairman and orders discharging the receiverships. The court directed preliminary issues concerning which body represented the executive authority and Government of Libya for the purposes of Article 6 of Law 13, and whether that question was governed by English law.

The parties disputed whether the court should determine the issues and whether recognition by Her Majesty’s Government resolved the question. The central issue was whether the Government of Libya was to be identified under English law by reference to the United Kingdom’s recognition of the Government of National Accord and Presidency Council.

1. Preliminary issues determined. The question which body represented the executive authority and Government of Libya, if it arose before the court, was governed by English law. This was not a conflict-of-laws rule. It followed from the executive’s prerogative to recognise foreign governments and from the constitutional requirement that the United Kingdom speak with one voice.
2. Where the Foreign and Commonwealth Office gives unequivocal notification that particular persons or a body are recognised as the government of a foreign state, the court must act on that notification as a fact of state. It cannot investigate whether the recognised government was lawfully constituted under the foreign state’s law. The court relied on the principle stated in The Arantzazu Mendi [1939] AC 256 and its modern formulation in Fawaz Al Attiya v Bin-Jassim Bin-Jaber Al Thani [2016] EWHC 212 (QB).
3. The FCO’s letters and the surrounding evidence established that Her Majesty’s Government had recognised and continued to recognise the Government of National Accord and the Presidency Council as Libya’s executive government from at least 19 April 2017. The court therefore declared that they represented the executive authority and Government of Libya from that date.
4. The determination did not decide whether Article 6 of Law 13 should be construed as referring to the executive government of Libya, whether the relevant resolutions validly appointed a Board of Trustees, or whether Dr Mahmoud was validly appointed Chairman. Those matters remained for determination in the continuing applications.

The judgment records earlier procedural steps in the continuing receivership and authority dispute, including Bouhadi v Breish [2016] EWHC 602 (Comm), but this was a first-instance determination of the ordered preliminary issues.