NML Capital Ltd & Yukos Universal Limited

Constitutional Court, NML Capital Ltd & Yukos Universal Limited, Nr. 48/2017, 27 April 2017

The Constitutional Court examines two actions for annulment filed by the companies NML Capital and Yukos Universal against the law of 23 August 2015 introducing Article 1412quinquies of the Judicial Code, which provides for a far-reaching immunity from execution for property of foreign States or international organizations. In light of the case-law of the Strasbourg Court, the Court acknowledges that restrictions on the right to access to Court and the right to property that stem from immunity of execution for property of foreign States are accepted inasmuch as they reflect generally recognized international immunity rules. What is more, Article 19 of the 2004 UN Convention on State Immunity, while not yet in force, can be regarded as indicative of present international custom on States’ immunity from execution.
The Court notes that the requirement under Article 1412quinquies that a State waiver from immunity from execution be ‘express’ is in accordance with the aforementioned Convention and international custom. By contrast, the additional requirement that such waiver must also be ‘specific’ goes beyond what international custom posits inasmuch as this requirement of specificity applies not only to diplomatic property (including embassy bank accounts), consular property, property of special missions, or international organizations (which is permissible), but also to other property of a foreign State more generally. The provision is indeed annulled to the extent that it extends the specificity requirement to the latter. By contrast, the Court upholds the requirement in Article 1412 quinquies that any attachment of the property of a foreign State presupposes prior approval by the juge de saisie.

VANDERSCHUREN, J., "Satisfecit constitutionnel partiel pour l’article 1412quinquies du Code judiciaire", JT 2018, afl. 6737, 560-564 and http://jt.larcier.be/ (6 july 2018).