Hilary Term

[2017] UKSC 3

On appeals from: [2014] EWCA Civ 1394 and [2014] EWHC 3846 (QB)

LORD MANCE:

Table of Contents

I Introduction       1

II The claimants' allegations       2

III Summary of conclusions       6

IV State immunity       9

V Foreign act of state       19

VI Three types of foreign act of state       21

VII Analysis of the case law .. 26

(i) Carr v Fracis Times & Co       26

(ii) The United States authorities       27

(iii) Buttes Gas v Hammer       32

VIII Application of the first and second types of foreign act of state       36

IX Application of third type of foreign act of state       51

X Miscellaneous points       63

XI Overall Conclusion       64

I Introduction

1.                   The appeals now before the Supreme Court in Belhaj and Boudchar v Straw and Ministry of Defence v Rahmatullah concern the alleged complicity of United Kingdom authorities and officials in various torts, allegedly committed by various other states in various overseas jurisdictions. The torts alleged include unlawful detention and rendition, torture or cruel and inhuman treatment and assault. The defences include in both appeals state immunity and the doctrine of foreign act of state. The case of Rahmatullah also raises for consideration the inter-relationship of these concepts with article 6 of the European Convention on Human Rights. The meticulous but differing analyses of the Court of Appeal (Lord Dyson MR and Sharp and Lloyd Jones LJJ) in Belhaj and Leggatt J in Rahmatullah underline the difficulties. The Supreme Court has nonetheless benefitted greatly from their analyses, as well as that of a previous Court of Appeal (Rix, Longmore and Davis LJJ) in Yukos Capital Sarl v OJSC Rosneft Oil Co (No 2) [2012] EWCA Civ 855; [2014] QB 458 (" Yukos v Rosneft").

2.                   The issues come before the courts by way of challenges under CPR rule 11.1 to the existence or exercise by the…