Deutsche Bank AG (London Branch) v Central Bank of Venezuela & Ors

The one voice principle requires courts to align their treatment of a foreign state’s acts and judgments with the executive’s recognition of the relevant government or head of state at the material time. A later withdrawal or change of recognition does not retrospectively alter the status of acts done while recognition stood, subject to any applicable rule of retroactivity. A foreign judgment cannot be recognised or given effect if, and to the extent that, its reasoning leading to the result depends on a premise contradicting that recognition. Dependence includes an express or implicit assumption forming a first step in the reasoning. Where the reasoning is interwoven and cannot be disentangled, partial recognition is unavailable.

The proceedings concerned competing boards claiming authority to represent the Central Bank of Venezuela in relation to gold reserves and related arbitration proceeds. Following a preliminary-issues appeal, the Supreme Court remitted the question whether judgments of Venezuela’s Supreme Tribunal of Justice should be recognised or given effect: [2021] UKSC 57. Cockerill J held that the relevant STJ decisions were not judgments in rem and, in any event, should not be recognised because of the one voice principle and natural justice concerns: [2022] EWHC 2040 (Comm). The Maduro Board appealed on the in rem, one voice and natural justice grounds and also sought a stay because of changed political circumstances. The central issue was whether recognition of the STJ decisions would conflict with the United Kingdom executive’s recognition of Mr Guaidó at the time of the appointments.

Stay and disposition. The stay application was dismissed. The appeal was dismissed because the one voice issue was dispositive. The Court did not determine the separate grounds concerning judgments in rem or natural justice.

1. Timing of recognition. The later withdrawal of recognition of Mr Guaidó did not retrospectively alter the position during the period when he was recognised as interim President. The relevant question was the status of the appointments when they were made. Gdynia-Ameryka Linie v Boguslawski [1953] AC 11 and Civil Air Transport Inc v Central Air Transport Corp [1953] AC 70 (PC) supported careful attention to the dates and terms of executive recognition. Any possible retroactivity principle did not apply on the facts.
2. Applicable test. Applying the Supreme Court’s formulation at [2021] UKSC 57, a foreign judgment cannot be recognised or given effect if, and to the extent that, the reasoning leading to its conclusion that the relevant acts were unlawful and void depends on the view that Mr Guaidó was not President. That includes an express or implicit assumption forming a first step in the reasoning. If the foreign court’s view of his status played no part in the reasoning, recognition would not conflict with the executive’s position.
3. Severability and evidence. The judge was entitled to find that the STJ’s reasoning concerning the National Assembly and Mr Guaidó was inseparable. The reasoning treated Mr Guaidó’s acts as invalid because it treated him as a private citizen and rejected the acts of the National Assembly from which his claimed authority derived. This was not a permissible blue-pencil exercise. The appellate court was also slow to interfere with findings on Venezuelan law reached after consideration of translated materials and competing expert evidence.
4. Result. The STJ decisions depended on the view that Mr Maduro, rather than Mr Guaidó, was President at the material time. Recognition would therefore conflict with the United Kingdom executive’s view. The appointment of the Guaidó Board had to be treated as a foreign act of state on which the courts would not adjudicate.

• Supreme Court: In [2021] UKSC 57; [2023] AC 156, the preliminary issues were determined and the question whether the STJ decisions should be recognised or given effect was remitted to the Commercial Court.
• Court of Appeal (Civil Division): In [2023] EWCA Civ 742, the appeal was dismissed. The Court held that recognition of the STJ decisions would conflict with the one voice principle.
• High Court (Commercial Court): Cockerill J’s decision, [2022] EWHC 2040 (Comm), held that the STJ decisions should not be recognised or given effect.