Category: Supreme Court

D. R. vs Republic of Mauritius

On By In Supreme Court
Supreme Court, D. R. vs Republic of Mauritius, Nr. C.22.0012.F, 6 April 2023

The case concerns a French-Mauritian dual national who initiated arbitral proceedings against Mauritius under the 1973 France–Mauritius Bilateral Investment Treaty (BIT), alleging several treaty breaches. In 2018, however, the arbitral tribunal, having its seat in Brussels, found it lacked jurisdiction on the grounds that dual nationals of the two State parties fall outside the BIT’s personal scope of application, even though the treaty does not expressly address this issue. The investor sought annulment of the award before the Brussels Tribunal of First Instance, yet without success.

Contrary to the claimant, the Supreme Court held that the contested judgment had relied on the 2010 BIT between France and Mauritius – which excludes dual nationals from its scope but had not yet entered into force – not to determine the scope of the 1973 Treaty, but rather as an element revealing the common intention of the States Parties, at least as of 2010.

The Supreme Court further accepted that the contested judgment could rightly consider the customary norm excluding diplomatic protection for dual nationals as a “relevant rule of international law applicable in the relations between the parties” in the sense of Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT) for purposes of interpreting the 1973 BIT. By contrast, the European Convention on Human Rights (ECHR) and its First Additional Protocol did not qualify as such, as Mauritius was not bound by these instruments.

With respect to the reliance on national legislation as a “supplementary means of interpretation” under Article 32 VCLT, the Supreme Court rejected that supplementary means can be used only when the interpretation pursuant to Article 31 VCLT leaves the matter ambiguous or results in an outcome that is manifestly absurd (as they can be used to confirm an interpretation pursuant to Article 31 VCLT). On the other hand, it held that the reference to “preparatory work” in Article 32 is merely illustrative and that other supplementary means of interpretation may also be considered.

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H.S.

On By In Supreme Court
Supreme Court, H.S., Nr. P.22.0053.N, 14 June 2022

The Belgian Supreme Court rejects the claim that the judgment of the Antwerp Court of Appeal of 22 December 2021 violated the duty to state reasons by holding, on the one hand, that Islamic State (IS) qualified as a ‘terrorist group’ in the sense of Articles 139 and 140 of the Criminal Code, pertaining to the prosecution of terrorist offences, but did not constitute ‘armed forces’ in the sense of Article 141bis of the same Code (which excludes members of armed forces involved in an armed conflict from prosecution for terrorist offences). The Supreme Court held that the notion of ‘armed forces’ in the sense of Article 141bis must be understood in light of the requirements of intensity and organization under international humanitarian law (IHL), and is distinct from the notion of ‘terrorist group’. The Supreme Court recalls the various reasons that led the Antwerp Court of Appeal to conclude that IS lacked the required degree of organization to be considered an ‘armed force’, including e.g. the lack of a single headquarters or command structure; the large number of foreign fighters operating without a clear overarching command, or; the practice of random detentions in lieu of disciplinary rules as envisaged under IHL. The Supreme Court concludes that the contested judgment was duly motivated.

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Supreme Court, K.E. and G.E. v Prosecutor

On By In Supreme Court
Supreme Court, K.E. and G.E. v Prosecutor, Nr. C.21.0095.F, 19 November 2021

The Belgian Supreme Court examines a judgement concerning the existence of Palestine as a State. The Court recalls that the 1933 Montevideo Convention is to be considered as codified customary international law and therefore applicable in the Belgian legal system. The first article of the Convention prescribes four criteria which States should fulfil in order to exist, regardless of any recognition by third States. Consequently, Belgian courts have the authority to apply and interpret this article without this interpretation becoming neither a general and legal rule nor any kind of recognition by the Belgian State. Hence, the Court adjudges that the understanding of article 1 applied to the State of Palestine in the underlying judgement was legally constituted and therefore dismisses the appeal in cassation as unfounded.

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X and X v Prosecutor

On By In Supreme Court
Supreme Court, X and X v Prosecutor, Nr. C.20.0482.N, 26 February 2021

In this case, two applicants instituted an appeal in cassation against a judgement of the Ghent Court of Appeal of 28 March 2019 denying their request for recognition as stateless persons. According to the Court of Appeal the applicants could not be regarded as stateless persons because they were considered as Palestinian nationals by the State of Palestine in accordance with applicable law. As the Palestinian law referred to was not specified in the judgment itself, the Court of Cassation quashed the judgment because of an inadequate statement of reasons.

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AGENTSCHAP INTEGRATIE & INBURGERING, “HvC verbreekt arrest dat naar Palestijnse nationaliteitswetteving verwijst”, 2021, www.agii.be/nieuws/hvc-verbreekt-arrest-dat-naar-palestijnse-nationaliteitswetgeving-verwijst.

Russian Federation v Godeau Finances

On By In Supreme Court
Supreme Court, Russian Federation v Godeau Finances, Nr. C.18.0282.F/1, 6 December 2019

The Supreme Court addresses a case by the Brussels Court of Appeal between a Belgian Real Estate company and the Russian Federation. The company sought compensation after the Russian Federation renounced the acquisition of a set of real estate properties intended for the housing of personnel of its Permanent Mission to the EU.

The Supreme Court confirms that State immunity from jurisdiction is a rule of customary international law which only applies to acts performed in the exercise of public authority (‘acta jure imperii’) and not to ‘acta jure gestionis’. In order to determine whether an act is done in the exercise of a State’s public authority, the nature of the act and the capacity in which the State has intervened, and the context in which the act was performed must be taken into account.

The Supreme Court finds that, by relying exclusively on the nature or form of the acts of the Russian Federation’s Permanent Mission to the EU in order to determine that they constituted acta jure gestionis, without examining the quality in which the applicant intervened having regard to the context in which the acts were undertaken, the Court of Appeal infringed customary international law. Consequently, the judgement is annulled.

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