"Maduro Board" of the Central Bank of Venezuela v "Guaido Board" of the Central Bank of Venezuela

A formal statement by Her Majesty’s Government recognising a foreign ruler or government is conclusive as to the recognition it expresses. The court must nevertheless construe the statement and may consider its context where it is ambiguous or incomplete. Recognition of one person as President de jure in the Luther v Sagor sense does not necessarily exclude implied recognition of another as President de facto. The “one voice” doctrine therefore did not prevent that question being investigated. The foreign act of state doctrine also could not be applied definitively before resolving the status of relevant foreign-court judgments and other outstanding issues. It did not require an English court to treat executive acts as valid where the highest court of the foreign state had already held them null and void, subject to any public-policy objection.

The appeals arose from two Commercial Court proceedings concerning competing instructions to the Bank of England and court-appointed receivers holding assets of the Central Bank of Venezuela. The issue was whether instructions could be given by a board appointed by Nicolás Maduro or by an ad hoc board appointed by Juan Guaidó.

Teare J held that, from 4 February 2019, Her Majesty’s Government recognised Mr Guaidó as President of Venezuela, that recognition was conclusive under the “one voice” doctrine, and that the Transition Statute and related appointments were protected from inquiry by the foreign act of state doctrine: [2020] EWHC 1721 (Comm). The Maduro Board appealed. The central questions were whether the statement excluded any recognition of Mr Maduro as President de facto, and whether the act of state issue could be determined before resolving the status of Venezuelan Supreme Tribunal judgments.

1. Appeal allowed. The judge’s answers to both preliminary issues were set aside. The recognition issue was answered only in part, and the act of state issue was held incapable of being answered at that stage. The matter was remitted to the Commercial Court.
2. Recognition is a prerogative decision for HMG. It may be express or implied. A formal statement is conclusive as to the recognition it expresses under the “one voice” principle, but the court must determine what the statement means. If it is incomplete or ambiguous, the court may construe it in the light of HMG’s public stance and conduct and may seek clarification.
3. In the Luther v Sagor sense, recognition de jure identifies the person entitled to the status, while recognition de facto identifies the person actually exercising its powers. HMG may recognise different persons in those capacities at the same time. The statement recognising Mr Guaidó as constitutional interim President did not exclude the possibility that Mr Maduro was recognised de facto, particularly in light of continuing diplomatic relations with his regime.
4. The argument that recognition of Mr Guaidó de facto breached customary international law was rejected. Recognition alone was not coercive intervention.
5. The second preliminary issue was premature. The foreign act of state doctrine does not apply to foreign judicial decisions. If the Venezuelan Supreme Tribunal judgments were recognised as authoritative statements that the relevant executive acts were null and void, the doctrine could not require the English court to treat those acts as valid and effective. The territoriality and subject-matter issues were left open.

• Court of Appeal (Civil Division) allowed the appeal, set aside the Commercial Court’s answers, answered the recognition issue only in part, held that the act of state issue could not yet be answered, and remitted the matter.
• High Court, Queen’s Bench Division, Commercial Court (Teare J) held that HMG had recognised Mr Guaidó as President from 4 February 2019, that the recognition was conclusive under the “one voice” doctrine, and that the relevant Venezuelan acts were protected by the foreign act of state doctrine: [2020] EWHC 1721 (Comm) .