Tag: Immunity

V. et al v the Holy See

On By In First Instance Tribunal
Ghent First Instance Tribunal, V. et al v the Holy See, Nr. 11/2648/A, 1 October 2013

Some 39 plaintiffs who claim to have been victims of sexual abuse as minors by ministers of the Roman Catholic Church in Belgium, argue that in addition to the damages stemming from the abuse itself, they also suffered damages due to the church authorities’ year-long refusal or failure to acknowledge and address the problem. The Holy See objects that the Court has no jurisdiction to adjudicate the claims against it as it enjoys immunity from jurisdiction.

The plaintiffs argue that the Holy See can only enjoy state immunity in its capacity as the government of Vatican City State, but not when it is sued ‘on behalf of the Pope’ in a civil court as the government of the Roman Catholic Church. The Court, however, rejects this argument as it would undo the de facto recognition of the Holy See as foreign sovereign by the Belgian State. The Court, moreover, dismisses the argument by the plaintiffs that the alleged policy errors of the Holy See were ‘acta jure gestionis’ for which it cannot rely on immunity from jurisdiction. The Court also confirms that the invocation of such immunity from jurisdiction does not entail a violation of the plaintiffs’ right of access to justice under the ECHR.

Download

Republic of Argentina v NMC Capital Ltd

On By In Supreme Court
Belgian Supreme Court, Republic of Argentina v. NMC Capital LTD, Nr. C.11.0688.F, 22 November 2012
ECLI:BE:CASS:2012:ARR.20121122.3

The judgment annuls a previous judgment by the Brussels Court of Appeals dated 21 June 2011. In the latter judgment , the Court of Appeals took the view that Argentina’s general waiver of immunity from jurisdiction and immunity from execution also covered the goods of Argentina’s diplomatic mission in Belgium, including its bank accounts (without there being a need to verify whether the amounts seized were used for purposes other than the functioning of the diplomatic mission). According to the Supreme Court, this approach violated articles 22, 3 and 25 of the Vienna Convention on Diplomatic Relations as well as the customary rule of ‘ne impediatur legatio’. In particular, the Supreme Court confirmed the need for an explicit and specific waiver of immunity in respect of goods of the diplomatic mission.

Download

Confederation of Christian Trade Unions and General Federation of Labour of Belgium v United States

On By In Labour Court of Appeal
Labour Court of Appeal Brussels, Confederation of Christian Trade Unions and General Federation of Labour of Belgium v United States, Nr. 2010/AB/1214, 3 May 2012
ECLI:BE:CTBRL:2012:ARR.20120503.14

The jurisdictional immunity of states is a rule of customary international law that prohibits the jurisdictions of one state from exercising its jurisdictional power over another state that has not consented. However, this immunity is limited: it concerns acts relating to sovereignty, not administration. In principle, the states may not invoke jurisdictional immunity before a court of another state in proceedings relating to employment contracts. However, no exception to the states’ jurisdictional immunity is provided for collective labor relations. Disputes concerning the regulations on the establishment of works councils are collective and not individual. The primacy of access to justice (Article 6 of the ECHR) over the rule of jurisdictional immunity and immunity from execution presupposes that the person against whom the immunity is asserted does not have other reasonable means of effectively obtaining the protection of the rights guaranteed to him by the ECHR. What matters in this regard is not that an action can be brought in the state of residence of the plaintiffs or that certainty is provided as to the application of the law of that state by the foreign jurisdiction, but that that jurisdiction (or the body of the international organization to which an internal action can be brought, as in the cases submitted to the Supreme Court) provides the guarantees of impartiality and independence of the court.

Download