Maduro Board of the Central Bank of Venezuela (Respondent/Cross-Appellant) v Guaidó Board of the Central Bank of Venezuela (Appellant/Cross-Respondent)

Michaelmas Term

[2021] UKSC 57

On appeal from: [2020] EWCA Civ 1249

“Maduro Board” of the Central Bank of Venezuela (Respondent/Cross-Appellant) v “Guaidó Board” of the Central Bank of Venezuela (Appellant/Cross-Respondent)

before

Lord Reed, President

JUDGMENT GIVEN ON

20 December 2021

Heard on 19, 20 and 21 July 2021
Guaidó Board
Timothy Otty QC
Sir Daniel Bethlehem QC

Andrew Fulton QC Mark Tushingham

(Instructed by Arnold & Porter Kaye Scholer LLP)

Maduro Board

Sir Jeffrey Jowell QC Nicholas Vineall QC

Professor Dan Sarooshi QC
Brian Dye
Jonathan Miller
Naina Patel
Mubarak Waseem

(Instructed by Zaiwalla & Co Ltd)

Intervener (Secretary of State for Foreign, Commonwealth and Development Affairs)

Sir James Eadie QC Sir Michael Wood

Jason Pobjoy Belinda McRae

(Instructed by The Government Legal Department)

TABLE OF CONTENTS

Paragraphs

Factual background ...................................................................................................... 6-38

The proceedings ........................................................................................................... 39-58

The submissions of the parties ..................................................................................... 59-62
Recognition of states and governments in international law ....................................... 63
FCDO practice in recognition ....................................................................................... 64-68
Recognition and the courts .......................................................................................... 69-79
Express and implied recognition .................................................................................. 80-82
De jure and de facto recognition .................................................................................. 83-86
Application of the principles to this case ..................................................................... 87-101
Subsequent events ....................................................................................................... 102-105
Head of government .................................................................................................... 106-109
Conclusion on recognition ........................................................................................... 110
Act of State .................................................................................................................. 111-180
The issues raised .......................................................................................................... 114-115
Rule 2: An act of a foreign state’s executive ................................................................ 116-170
Limitations and exceptions .......................................................................................... 136
Appointments as acts of state ...................................................................................... 137-146
Territoriality ................................................................................................................. 147-150
Incidental issue ............................................................................................................ 151-152
The judgments of the STJ ............................................................................................. 153-170
Rule 1: A foreign state’s legislation or other laws ........................................................ 171-180
Conclusion ................................................................................................................... 181

LORD LLOYD-JONES: (with whom Lord Reed, Lord Hodge, Lord Hamblen and Lord

Leggatt agree)

Introduction

1. This appeal raises fundamental issues concerning the recognition of a foreign head of state, the foreign act of state doctrine and their inter-relationship.

(1)	Whether Mr Guaidó or Mr Maduro is recognised as the President of

Venezuela; and

(2) If the answer is that Mr Guaidó is the President and Mr Maduro is not,

the validity of Mr Guaidó’s appointment of the Guaidó Board and of the Special
Attorney General.

(1)	The “recognition issue” namely:

Does Her Majesty’s Government (“HMG”) (formally) recognise Juan Guaidó or Nicolás Maduro and, if so, in what capacity, on what basis and from when? In that regard:

(i)         Has Her Majesty’s Government formally recognised Mr Guaidó as

interim President of Venezuela by virtue of the Foreign and and/or the public statements made by Her Majesty’s Government?

(ii)        If so, is that recognition as both head of state and head of

government? and

(iii)       Is any such recognition conclusive pursuant to the “one voice”

doctrine for the purpose of determining the issues in these proceedings?

(2)	The “act of state issue” namely:

Can this Court consider the validity and/or constitutionality under Venezuelan as being valid and effective without inquiry? In that regard:

law of (a) the Transition Statute; (b) Decrees Nos 8 and 10 issued by Mr Guaidó;
(c) the appointment of Mr Hernández as Special Attorney General; (d) the
appointment of the Ad Hoc Administrative Board of BCV; and/or (e) the

(i)         Does the “one voice” doctrine preclude inquiry into the validity of

such matters?

(ii)        Are such matters foreign acts of state and/or non-justiciable?

(iii)       Does the Court lack jurisdiction and/or should it decline as a

matter of judicial abstention to determine such issues?

Factual background

6.          In April 2013, Mr Maduro was elected President of Venezuela.

7.          In December 2015, there were elections for Venezuela’s legislature, the

National Assembly. A dispute arose as to the validity of the election of four deputies for the State of Amazonas. The Supreme Tribunal of Justice of Venezuela (the “STJ”), the highest Venezuelan constitutional court, granted provisional relief suspending the
implementation of the election of these deputies. However, the opposition coalition,
which claimed victory in the elections, decided that the four deputies should be sworn
in anyway.

8. There is a dispute between the Guaidó Board and the Maduro Board in relation

to all of the judgments of the STJ upon which the Maduro Board relies from 2016
onwards. The Guaidó Board’s pleaded case is that the STJ’s judgments were issued in
violation of principles of due process and that the members of the STJ are not impartial
and independent but were acting corruptly to support Mr Maduro.

9. On 1 August 2016, the STJ issued a judgment in which it declared that all

decisions taken by the National Assembly would be null and void for so long as it was
constituted in breach of the judgments and orders of the STJ. Subsequently, other
judgments were issued to the same or similar effect.

10. In May 2017, a National Constituent Assembly was established on Mr Maduro’s

initiative and an election was held for its members. This was essentially a rival
legislature to the National Assembly.

11. In May 2018, a Presidential election took place which Mr Maduro claims to have won. The United Kingdom considered that this election was deeply flawed.

12. On 19 June 2018, Mr Maduro appointed Mr Ortega as President of the BCV. On

26 June 2018, the National Assembly passed a resolution declaring Mr Ortega’s
appointment to be unconstitutional. The STJ in turn has declared the National
Assembly Resolution unconstitutional.

13. On 10 January 2019, Mr Maduro was sworn in before the STJ for a second term as the President of Venezuela.

14.        However, on 15 January 2019, the National Assembly and the President of the

National Assembly, Mr Guaidó, announced, relying upon article 233 of the Venezuelan Constitution, that Mr Maduro had usurped the office of President and that Mr Guaidó was the interim President of Venezuela by virtue of his position as President of the
National Assembly.

15. On 26 January 2019, the United Kingdom joined European Union partners in

giving Mr Maduro eight days to call fresh elections, in the absence of which those
countries would recognise Mr Guaidó as interim President “in charge of the transition
back to democracy”. Mr Maduro did not call such elections.

16. On 4 February 2019, the then Foreign Secretary, the Rt Hon Jeremy Hunt MP, issued the following statement:

“The United Kingdom now recognises Juan Guaidó as the
constitutional interim President of Venezuela, until credible
presidential elections can be held.

The people of Venezuela have suffered enough. It is time for a new start, with free and fair elections in accordance with international democratic standards.

The oppression of the illegitimate, kleptocratic Maduro regime must end. Those who continue to violate the human rights of ordinary Venezuelans under an illegitimate regime will be called to account. The Venezuelan people deserve a better future.”

17.        This was followed by an exchange of letters between Tom Tugendhat MP, Chair

of the House of Commons Select Committee on Foreign Affairs and Sir Alan Duncan MP, Minister of State for Europe and the Americas, which has been made public. Mr Tugendhat asked for an explanation of the legal basis for this act of recognition.

18.        On 25 February 2019, Sir Alan explained that the decision to recognise Mr

Guaidó was a “case specific exception to our continuing policy of recognising states not governments” and was based on two points. First, Mr Guaidó and the National Assembly were acting consistently with the Venezuelan constitution when they declared the Presidency vacant following the May 2018 elections which were “deeply flawed”. Secondly, the circumstances in Venezuela were “exceptional”: 3.6m people had fled the country and the regime, which was “holding onto power though electoral malpractice and harsh repression of dissent”, had been referred to the International Criminal Court by six countries for its abuse of human rights.

19.        Meanwhile, on 5 February 2019 the National Assembly passed the “Transition

Statute”. This was described in its preamble as a statute that “governs a Transition to democracy to restore the full force and effect of the Constitution of the Bolivarian Republic of Venezuela.” The translation before the court records that it was “issued, signed and sealed at the Federal Legislative Palace, seat of the National Assembly of the Bolivarian Republic of Venezuela, in Caracas, on February 5, 2019.” The signatories were Mr Guaidó, as President of the National Assembly, two vice-presidents, a secretary and an under-secretary of the National Assembly. It bears the seal of Mr Guaidó as President of Venezuela.

20. Article 4 of the Transition Statute provides that “The present Statute is a legal

act in direct and immediate execution of article 333 of the Constitution of the
Bolivarian Republic of Venezuela.”

21. Article 14 of the Transition Statute provides that, in accordance with article 233

of the Constitution, the President of the National Assembly (ie, Mr Guaidó) is “the
legitimate Interim President of the Bolivarian Republic of Venezuela.”

22.        Article 15 of the Transition Statute provides:

“The National Assembly may adopt any decisions necessary Statute, and within the framework of article 333 of the Constitution, the Interim President of the Bolivarian Republic of Venezuela shall exercise the following powers, subject to authorisation and control by the National Assembly under the principles of transparency and accountability.

to defend the rights of the Venezuelan State before the
international community, to safeguard assets, property and
interests of the state abroad, and promote the protection
and defense of human rights of the Venezuelan people, all in
accordance with Treaties, Conventions, and International
Agreements in force.

a.	Appoint ad hoc administrative boards to

assume the direction and administration of public
institutes, autonomous institutes, state foundations,
state associations and state civil societies, state
companies, including companies established abroad,
and any other decentralized entity, for the purpose of
appointing administrators and, in general, adopting
the measures necessary to control and protect their
assets. The decisions adopted by the Interim President
of the Republic shall be executed immediately, with

full legal effect.

b.	While an Attorney General is validly appointed

in accordance with article 249 of the Constitution, and the Interim President of the Republic may appoint a special attorney general to defend and represent the rights and interests of the Republic, state companies and other decentralized entities of the Public Administration abroad. The special attorney general shall have the power to designate judicial representatives, including before international arbitration proceedings, and shall exercise the powers set forth in article 48, paragraphs 7, 8, 9 and 13, of the Organic Law of the Attorney General of the Republic, subject to the limitations derived from article 84 of that Law and this Statute. Such representation shall be especially oriented toward ensuring the protection, control, and recovery of state assets abroad, as well as executing any action required to safeguard the rights and interests of the state. The attorney general thus appointed shall have the power to execute any action and exercise all of the rights that the Attorney General would have, with regard to the assets described herein. For such purposes, such special attorney general shall meet the same conditions that the Law requires to occupy the position of Attorney General of the Republic.”

within the framework of articles 15 and 50 of the

23. On 5 February 2019, Mr Guaidó purported, as interim President, to appoint Mr

José Ignacio Hernández as Special Attorney General. He purported to do so pursuant to
articles 233, 236 and 333 of the Venezuelan Constitution and article 15b of the
Transition Statute. The decree was “issued at the Federal Legislative Palace in
Caracas”.

24. On 8 February 2019, the STJ issued a judgment holding that the Transition

Statute was unconstitutional, a nullity and of no legal effect. This was followed on 11 unconstitutional, a nullity and of no legal effect.

25. On 18 July 2019, Mr Guaidó purported, as interim President, to appoint an ad

hoc board of the BCV (ie, the Guaidó Board) by “Decree No 8”. The decree was
expressed to be “issued at the Federal Legislative Palace in Caracas”.

26. Article 3 of Decree No 8 purports to provide that the Ad Hoc Board would

represent the BCV abroad in connection with agreements relating to the management
of international reserves, including gold.

27. Article 7 of Decree No 8 purports to provide that the acts that resulted in the

appointment of the person who currently occupies the Presidency of the BCV (ie, Mr
Ortega) were declared null and void.

28. On 25 July 2019, the STJ issued a judgment holding that the appointment of the Guaidó Board was unconstitutional, a nullity and of no legal effect.

29. On 13 August 2019, Mr Guaidó, as interim President, passed “Decree No 10”

appointing an additional member to the Guaidó Board and naming Mr Ricardo Villasmil
as Chairman of the Guaidó Board.

30.        On 5 January 2020, Mr Guaidó was re-elected President of the National

Assembly.

31.        On 19 May 2020, the National Assembly passed a resolution stating that the

BCV was a “decentralised entity” and that the BCV’s assets abroad may only be administered by the Guaidó Board. This resolution was declared unconstitutional by the STJ on 26 May 2020.

32. The Maduro Board contends that the STJ has declared that all decisions taken

Mr Guaidó as interim President, the Transition Statute, the appointment of Mr
Hernández as Special Attorney General and the appointment of the Guaidó Board. The

by the National Assembly since 2016 are null and void, including the appointment of entity”, a term referred to in the Transition Statute.

33. The courts below have not made any findings of fact about (1) the status of the

STJ judgments or (2) the issue of who actually exercises effective control within para 5 above.

34. The Maduro Board’s case is that in practice Mr Maduro continues effectively to

exercise all the powers of head of state and head of government, through the
government of which he is the head, and that Mr Guaidó does not and has never done
so. The Guaidó Board accepts that the Maduro regime exercises at least a degree of
effective control in Venezuela, although the manner and extent of such control is
disputed. In particular, the Guaidó Board does not accept that the Maduro regime
enjoys the habitual obedience of the bulk of the population of Venezuela with a
reasonable expectancy of permanence. Nevertheless, the Guaidó Board’s position is
that these considerations are irrelevant to the preliminary issues.

35. It is common ground that there has been no change in diplomatic relations

Andrew Soper, who was originally appointed in October 2017, remained the

between the United Kingdom and Venezuela in the period after 4 February 2019. Mr replaced by Ms Rebecca Buckingham OBE as chargée d’affaires ad interim. Venezuela’s Ambassador to the United Kingdom has remained Mrs Rocío Maneiro, who was originally appointed in November 2014.

36.        HMG declined to grant diplomatic status to Mr Guaidó’s (former) official

representative in the UK, Ms Vanessa Neumann, or to establish diplomatic relations with Mr Guaidó, although there have been contacts between Ms Neumann and UK ministers including the Prime Minister.

37. On 6 December 2020, National Assembly elections took place in Venezuela. Mr Guaidó did not stand for election. Mr Guaidó and his political allies boycotted the elections on the basis that they considered that the conditions under which they were being held were neither free nor fair.

38. On 7 December 2020, the Foreign, Commonwealth and Development Office (“FCDO”), as the FCO had now become, released the following statement:

“The Venezuelan National Assembly election on 6 December Organisation of American States, the European Union, and others; nor did it meet the requirements of Venezuelan law. The UK considers the election to have been illegitimate and does not recognise the result. The UK recognises the National Assembly democratically elected in 2015 and recognises Juan Guaidó as interim constitutional President of Venezuela. It is vital that Venezuelans are given the opportunity to vote soon in presidential and legislative elections that are free, fair and effectively overseen. The UK considers that restoring democracy is an essential step towards ending the political, economic and humanitarian crises afflicting Venezuela’s long- suffering people and calls on all its leaders to commit to supporting a solution to this end.”

was neither free nor fair. It did not meet internationally
accepted conditions, as called for by the International

The proceedings

39. On 13 May 2019, DB issued an Arbitration Claim Form seeking the appointment

of receivers to hold and manage the proceeds of a gold swap contract concluded with
the BCV (the “DB Proceedings”). The swap contract was governed by English law and
provided for disputes to be resolved by LCIA arbitration in London. The DB Proceedings
were commenced in support of DB’s LCIA arbitration proceedings against BCV. The
confidential arbitral proceedings are effectively stayed, pending resolution of the
question of who is entitled to represent the BCV.

40. The claim was issued because DB had received conflicting instructions with

regard to the payment of the proceeds of the gold swap contract. The court appointed
the Receivers and DB transferred the proceeds of the gold swap contract to the
Receivers.

41. Between September and October 2019, the Guaidó Board and the Maduro

Board served statements of case setting out, respectively, the entitlement of Mr
Hernández and Mr Ortega to give instructions on behalf of the BCV in the LCIA
Arbitration which DB had commenced against the BCV.

42.        On 14 February 2020, after hearing argument in the arbitration application,

Robin Knowles J wrote to the then Foreign Secretary, The Rt Hon Dominic Raab MP, inviting HMG to provide a written certificate on two questions:

“(i) Who does HMG recognise as the head of state of the Bolivarian Republic of Venezuela?

(ii) Who does HMG recognise as the head of government of the Bolivarian Republic of Venezuela?”

43.        On 19 March 2020, a reply was sent by Mr Hugo Shorter, Director for the

Americas at the FCO. Mr Shorter referred to the two questions and to the policy statement issued by Lord Carrington in 1980 explaining that the UK would no longer recognise governments. He continued:

“The policy of non-recognition does not preclude Her government or making a statement setting out the entity or entities with which it will conduct government to government dealings, where it considers it appropriate to do so in the circumstances.

In this respect we refer you to the statement of the then Foreign Secretary, the Rt Hon J Hunt, on 4 February 2019, recognising Juan Guaidó as constitutional interim President of Venezuela until credible elections could be held, in the following terms: …”

The statement made by the then Foreign Secretary on 4 February 2019 (see para 16 above) was then quoted and Mr Shorter ended by confirming that this remained the position of HMG.

44. On 30 March 2020, Robin Knowles J ordered that the recognition issue and the

act of state issue be determined as preliminary issues in the DB Proceedings. On 29
April 2020, Flaux LJ refused the Maduro Board permission to appeal from that decision.

45. On 14 May 2020, a separate claim form was issued in the name of the BCV,

upon the instructions of the Maduro Board, against the BoE, claiming that the BoE was
in breach of its contractual obligation to accept instructions from the Maduro Board
with regard to payment of the gold reserves held by it (the “BoE Proceedings”).

46.        Two applications were then issued in the BoE Proceedings:

(1) First, also on 14 May 2020, an application by the Maduro Board for an expedited hearing of the entire claim on Covid-19 grounds; and

(2) Second, on 19 May 2020, a stakeholder application issued by the BoE rule 86.1 for the court to determine upon whose instructions (as between the

(who, like DB, had received conflicting instructions) seeking an order under CPR the gold reserves held by the BoE on behalf of the BCV.

47. Both applications were heard by Teare J on 21 and 28 May 2020. Teare J

considered the preliminary issues in both the DB Proceedings and the BoE Proceedings
and ordered that the individual members of the Guaidó Board and the Maduro Board
be joined as stakeholder claimants in the BoE Proceedings. After the BoE had made an
application for a stay on 25 May 2020, Teare J also ordered a stay of the BCV’s action
against the BoE.

48. The preliminary issues were heard by Teare J over four days between 22-25

June 2020. Teare J handed down his judgment on 2 July 2020 ([2020] EWHC 1721
(Comm); [2021] QB 455). He resolved both preliminary issues in the Guaidó Board’s
favour.

49.        On the recognition issue he held (at para 42) that HMG had recognised Mr

Guaidó in the capacity of the constitutional interim President of Venezuela by virtue of the FCO’s 19 March 2020 letter to the court and/or the public statements made by HMG and, it must follow, does not recognise Mr Maduro as the constitutional interim President of Venezuela. It recognised Mr Guaidó on the basis that such recognition is in accordance with the Constitution of the Republic of Venezuela and had done so since 4 February 2019. This recognition was as head of state but not as head of government. It was conclusive pursuant to the “one voice” principle for the purpose of determining the issues in these proceedings.

52. On the recognition issue, Males LJ held (at para 126) that “HMG has since 4

that is to say as the person entitled to be regarded as the President of Venezuela”.
HMG had formally recognised Mr Guaidó as interim President of Venezuela by virtue of
the FCO’s 19 March 2020 letter to the court and/or other public statements. That
recognition was as head of state but not as head of government. Such recognition was
not conclusive pursuant to the “one voice” principle for the purpose of determining
the issues in these proceedings. While such recognition was conclusive for the purpose
of determining who is the de jure President of Venezuela, it leaves open the possibility
that HMG may impliedly recognise Mr Maduro as the de facto President of Venezuela.

50.        On the act of state issue Teare J held (at para 93) that it was not open to the

court to consider the validity and/or constitutionality under Venezuelan law of (a) the Transition Statute; (b) Decrees No 8 and 10 issued by Mr Guaidó; (c) the appointment of Mr Hernandez as Special Attorney General; (d) the appointment of the Ad Hoc

Administrative Board of BCV; and/or (e) the National Assembly’s Resolution dated 19 May 2020. The court was required to regard those acts as being valid and effective without inquiry. The one voice principle precluded inquiry into the validity of such matters, but only in so far as the challenge is based upon decisions of the STJ which are themselves based upon Mr Guaidó not being the constitutional interim President of Venezuela. Such matters were foreign acts of state and non-justiciable. The court lacked jurisdiction because of subject matter immunity.

51.        Teare J granted the Maduro Board permission to appeal to the Court of Appeal

on one ground relating to act of state. The Maduro Board then sought and obtained permission to appeal (from Hickinbottom LJ) against Teare J’s Judgment. The appeal, which was directed to be expedited, was heard over three days between 22-24

September 2020 by Lewison, Males and Phillips LJJ. The Court of Appeal allowed the appeal and handed down its judgment on 5 October 2020 ([2020] EWCA Civ 1249; [2021] QB 455. Males LJ gave the leading judgment with which Lewison and Phillips LJJ agreed.

February 2019 formally recognised Mr Guaidó as the de jure President of Venezuela, issue, it was necessary to determine whether (1) HMG recognises Mr Guaidó as President of Venezuela for all purposes and therefore does not recognise Mr Maduro as President for any purpose or (2) HMG recognises Mr Guaidó as entitled to be the President of Venezuela and thus entitled to exercise all the powers of the President but also recognises Mr Maduro as the person who does in fact exercise some or all of the powers of the President of Venezuela. In his view these questions were best determined by posing a further question or questions to the FCO and the matter was remitted to the Commercial Court for this purpose.

53. Males LJ held (at paras 138-139) that the act of state issue was not capable of

the absence of such clarification, determining whether HMG continues by necessary
implication to recognise Mr Maduro as the President of Venezuela de facto.

being answered at that stage without seeking further clarification from the FCO or, in because there was an unresolved issue as to whether the various judgments of the STJ should be recognised by courts in this jurisdiction. In his view this was an issue which the English court can and must investigate.

54. Applications by the Guaidó Board and the Maduro Board for permission to appeal to the Supreme Court were refused by the Court of Appeal.

55.        On 9 December 2020, the Supreme Court granted the Guaidó Board’s

application for permission to appeal on all grounds. The Supreme Court refused the recognition issue.

56. On 10 December 2020, Cockerill J ordered a stay of the proceedings in the Commercial Court to await the outcome of the present appeal to the Supreme Court.

57. On 18 January 2021, the Maduro Board applied for permission to cross-appeal

on the act of state issue, but on a contingent basis, indicating that its preferred course
was that if the Guaidó Board’s third ground of appeal were to succeed, act of state
issues should be remitted to the Court of Appeal for reconsideration, rather than be
decided in the Supreme Court in the absence of a full Court of Appeal decision and
against an undetermined factual background. The Guaidó Board resisted the proposal
for remittal but consented to the alternative basis of the Maduro Board’s application,
namely that the Supreme Court should give permission to cross-appeal. On 22 April
2021, the Supreme Court granted the Maduro Board’s application for permission to
cross-appeal.

58.        On 14 May 2021, the Supreme Court granted an application by the Secretary of

State for Foreign, Commonwealth and Development Affairs (“the Foreign Secretary”) for permission to intervene in the appeal.

Recognition

The submissions of the parties

59. The Guaidó Board, the appellant in these proceedings, submits that on the

correct application of the one voice principle and the act of state doctrine, courts in
this jurisdiction must conclude that the Guaidó Board is entitled to give instructions on
behalf of the BCV. In particular, it submits that:

(1)	Mr Guaidó has been expressly and unequivocally recognised by HMG as

the President of Venezuela, as evidenced by a formal statement provided by the FCO dated 19 March 2020, in response to a request from the Commercial Court.

(2) In that capacity Mr Guaidó has appointed the Guaidó Board as an ad hoc

board of the BCV and has also appointed a Special Attorney General.

(3)	These appointments by Mr Guaidó were executive acts undertaken in the

exercise of sovereign authority by the person formally recognised by HMG as the President of Venezuela, which acts courts in this jurisdiction are bound to treat as valid and effective under the foreign act of state doctrine, subject only

to a public policy exception which has no application in this case.

60. The Maduro Board responds that the meaning of the executive statement was clear. It is a formal recognition of Mr Guaidó as the person HMG considers entitled to exercise the powers of interim President of Venezuela, but it does not go further than that. At the very least, it leaves open the possibility of a continuing express or implied recognition of Mr Maduro as President. The Maduro Board submits, further, that the absence of any statement withdrawing recognition from Mr Maduro and the

continued maintenance of diplomatic relations and consular dealings with persons appointed by Mr Maduro show clearly and unambiguously that HMG continues to recognise Mr Maduro as in fact exercising the powers of President of Venezuela. In

“The grant of recognition is an act on the international plane,
affecting the mutual rights and obligations of states, and
their status or legal capacity in general. Recognition also has
consequences at the national level, as where the application
of rules of municipal law is affected by a decision to recognise
a new state or government.” (Sir Robert Jennings and Sir
Arthur Watts (eds), Oppenheim’s International Law, 9th ed
(1992), p 128)

Recognition of a state must be distinguished from recognition of a government. Recognition of a state is an acknowledgement that the entity concerned has attained the status of statehood. In the present case, no question arises as to the continuing existence of Venezuela as a state. Rather, these proceedings concern the recognition of an individual as head of state of Venezuela which, as the Foreign Secretary expresses it in his written case, “signifies the recognising state’s willingness to deal with that individual as representing the state concerned on the international plane”.

FCDO practice in recognition

64. The recognition of foreign states, governments and heads of state is, under the

constitutional arrangements in force within the United Kingdom, one element of the
conduct of foreign relations which is entrusted to the executive and which is
performed in large part pursuant to the royal prerogative.

65. The practice of the FCDO in relation to the recognition of foreign governments

has changed over the years. Prior to 1980 it was the long-standing practice of HMG to
make and announce decisions formally recognising a new government following an
unconstitutional regime change. Recognition would be granted if specific criteria were
met. In an answer to a question in the House of Commons on 21 March 1951 the
Secretary of State for Foreign Affairs, Mr Herbert Morrison, stated:

“The question of the recognition of a state or government should be distinguished from the question of entering into diplomatic relations with it, which is entirely discretionary. On the other hand, it is international law which defines the conditions under which a government should be recognised de jure or de facto, and it is a matter of judgment in each

particular case whether a régime fulfils the conditions. The conditions under international law for the recognition of a new régime as the de facto government of a state are that the new régime has in fact effective control over most of the
state’s territory and that this control seems likely to
continue. The conditions for the recognition of a new régime
as the de jure government of a state are that the new régime
should not merely have effective control over most of the
state’s territory, but that it should, in fact, be firmly
established. His Majesty’s Government consider that
recognition should be accorded when the conditions
specified by international law are, in fact, fulfilled and that
recognition should not be given when these conditions are
not fulfilled. The recognition of a government de jure or de
facto should not depend on whether, the character of the
régime is such as to command His Majesty’s Government’s
approval.” (Hansard (HC Debates), 21 March 1951, vol 485,
cols 2410-2411)

66. Following a review of that practice, on 28 April 1980, the Secretary of State for

Foreign and Commonwealth Affairs, Lord Carrington, stated in a written answer in the
House of Lords:

“… we have conducted a re-examination of British policy and practice concerning the recognition of governments. This has included a comparison with the practice of our partners and

allies. On the basis of this review we have decided that we common international doctrine.

shall no longer accord recognition to governments. The

Where an unconstitutional change of régime takes place in a recognised state, governments of other states must necessarily consider what dealings, if any, they should have with the new régime, and whether and to what extent it qualifies to be treated as the government of the state concerned. Many of our partners and allies take the position that they do not recognise governments and that therefore no question of recognition arises in such cases. By contrast, the policy of successive British Governments has been that we should make and announce a decision formally ‘recognising’ the new government.

This practice has sometimes been misunderstood, and, despite explanations to the contrary, our ‘recognition’ interpreted as implying approval. For example, in

circumstances where there might be legitimate public
concern about the violation of human rights by the new
régime, or the manner in which it achieved power, it has not
sufficed to say that an announcement of ‘recognition’ is
simply a neutral formality.

We have therefore concluded that there are practical advantages in following the policy of many other countries in not according recognition to governments. Like them, we shall continue to decide the nature of our dealings with regimes which come to power unconstitutionally in the light of our assessment of whether they are able of themselves to exercise effective control of the territory of the state concerned, and seem likely to continue to do so.” (Hansard (HL Debates), 28 April 1980, vol 408, cols 1121-1122)

67. On 23 May 1980, in answer to a question as to how in future, for the purposes

of legal proceedings, it may be ascertained whether, on a particular date, HMG
regarded a new regime as the government of the state concerned, the Lord Privy Seal,
Sir Ian Gilmour replied:

“In future cases where a new régime comes to power
unconstitutionally our attitude on the question whether it
qualifies to be treated as a government will be left to be
inferred from the nature of the dealings, if any, which we
may have with it, and in particular on whether we are dealing
with it on a normal government to government basis.”
(Hansard (HC Debates), 23 May 1980, vol 985, col 385W)

68. Notwithstanding this announced policy, there have been occasions since 1980 on which HMG has, exceptionally, recognised or formally declined to recognise a foreign government where it considers it appropriate to do so. Nor has the policy prevented HMG from informing the courts of such recognition. In Kuwait Airways Corpn v Iraqi Airways (Nos 4 and 5) [2002] UKHL 19; [2002] 2 AC 883, paras 349-350,

the Court of Appeal made clear that, despite the 1980 statement, there is nothing to prevent HMG, if it thinks it appropriate, from tendering to the courts an unequivocal certificate of recognition or non-recognition of the existence of a foreign government.

In that case the United Kingdom was under a positive obligation under UN resolutions paras 14, 30.)
not to recognise any regime other than the legitimate government of Kuwait. More
recently, on 27 July 2011, HMG withdrew recognition from the Government of Libya
led by Muammar Muhammad al-Qadhafi and recognised the National Transitional
Council of the State of Libya as the “sole governmental authority in Libya” (British Arab
Commercial Bank plc v National Transitional Council of the State of Libya [2011] EWHC
2274 (Comm), paras 1-6). On those occasions when HMG does issue a formal
statement of recognition or non-recognition of a foreign government, the certificate
will be taken by the court as conclusive. (Veysi Dag v Secretary of State for the Home
Department (2001) 122 ILR 529, paras 17, 18; British Arab Commercial Bank plc v
National Transitional Council of the State of Libya, para 25 per Blair J. See also R (HRH
Recognition and the courts

69.        As the conduct of foreign relations is entrusted to the executive branch of

government, this is a field where the judiciary must normally defer to the executive which alone is competent to determine foreign policy. This is embodied in the “one voice principle” which finds its classic formulation in the speech of Lord Atkin in The Government of the Republic of Spain v SS “Arantzazu Mendi” [1939] AC 256, 264:

“Our state cannot speak with two voices on such a matter, sovereign in the family of states: and the relations of the foreign state with ours in the matter of state immunities must flow from that decision alone.”

the judiciary saying one thing, the executive another. Our

As a result, courts in this jurisdiction accept as conclusive statements made by the executive relating to certain questions of fact in the field of international affairs. These questions include the sovereign status of a state or government and whether an individual is to be regarded as a head of state (Mighell v Sultan of Johore [1894] 1 QB 149; Carr v Fracis Times & Co [1902] AC 176).

“It was said that Sir Robert Phillimore did so in the case of ought not to have done so; that, when once there is the authoritative certificate of the Queen through her minister of state as to the status of another sovereign, that in the courts of this country is decisive. Therefore this letter is conclusive that the defendant is an independent sovereign.”

Similarly, Kay LJ observed (at pp 161-162):

“It was contended that that letter was not sufficient, and did not satisfactorily establish the status of the defendant as an independent sovereign. I confess I cannot conceive a more

satisfactory mode of obtaining information on the subject than such a letter. Proceeding as it does from the office of one of the principal secretaries of state, and purporting to be
written by his direction, I think it must be treated as
equivalent to a statement by Her Majesty herself, and, if Her
Majesty condescends to state to one of her courts of justice,
that an individual cited before it is an independent sovereign,
I think that statement must be taken as conclusive.”

In an earlier passage in his judgment, however, Kay LJ had observed that the status of a foreign sovereign is a matter of which the courts take judicial cognisance, “a matter which the court is either assumed to know or to have the means of discovering, without a contentious inquiry” (at p 161).

72. In In re Suarez [1918] 1 Ch 176 the Court of Appeal held that the defendant had

ceased at the relevant time to be the Bolivian Minister, on the basis of a letter to that
effect from the Foreign Office to the plaintiff’s solicitors. However, once again the
reasoning differed. Warrington LJ referred (at p 195) to the letter as “sufficient
evidence”, while Scrutton LJ referred (at p 199) to “the Foreign Office through whom
this court obtains conclusive information as to the status of foreign dignitaries”.

73. In The Gagara the Esthonian National Council applied to set aside proceedings on the ground that it was a sovereign power. The Attorney General appeared in court on behalf of the Foreign Office and stated that HMG had provisionally recognised the Esthonian Government. At first instance (1919) 35 TLR 243 Hill J considered himself

bound to recognise the sovereign rights of the Esthonian Government because HMG did so. On appeal [1919] P 95 the Court of Appeal considered itself bound to decline jurisdiction lest there should be “a divergence of action as between the courts of this country and the statements that have been made by the Government of the country as
to the attitude which this country was prepared to take” (per Bankes LJ at p 104).

1. Aksionernoye Obschestvo AM Luther v James Sagor & Co (“Luther v Sagor”)

concerned title to movable property which had been expropriated by the Soviet instance [1921] 1 KB 456, Roche J received statements from the Foreign Office as to the status of the Soviet Government which he described as “guarded”. He concluded that he could not be satisfied that HMG had recognised the Soviet Government. “I therefore am unable to recognize it, or to hold it has sovereignty, or is able by decree to deprive the plaintiff company of its property” (at pp 477-478). On appeal [1921] 3 KB 532 a further Foreign Office certificate was produced stating that HMG now recognised the Soviet Government as the de facto government of Russia. Warrington LJ (at p 548) considered this “clearly conclusive as to the status of the Soviet Government”. Similarly, Scrutton LJ stated (at p 556) that “the courts in questions whether a particular person or institution is a sovereign must be guided only by the statement of the sovereign on whose behalf they exercise jurisdiction”. In his view the court was bound to hold that the acts of expropriation and sale were acts of a sovereign state.

75.        The one voice principle was considered and affirmed by the House of Lords in

Duff Development Co Ltd v Government of Kelantan [1924] AC 797. The appellant obtained an order in the High Court giving leave to enforce an arbitration award it had secured against the Government of Kelantan. The Government of Kelantan applied to set the order aside on the ground that it was a sovereign independent state. The Master in the King’s Bench Division asked the Secretary of State for the Colonies to provide information as to the status of Kelantan and received in reply an official letter stating that Kelantan was an independent state, that its Sultan was the sovereign ruler and that the King did not exercise or claim any rights of sovereignty over Kelantan. Documents enclosed with the reply showed that Kelantan had formerly been recognised as a dependency of Siam, that the Siamese Government had by a treaty transferred to the British Government all its rights over Kelantan and that by an agreement of 1910 the Rajah (subsequently styled the Sultan) of Kelantan had engaged to have no political relations with any foreign power except through the medium of His Majesty the King of England and to follow in all matters of administration (save those touching the Mohammedan religion and Malay custom) the advice of an adviser appointed by His Majesty.

76. While their Lordships agreed on the existence of a principle that the executive

and the judiciary should speak with one voice on the status of Kelantan and its Sultan,
it was described in widely varying terms. Viscount Cave, Viscount Finlay and Lord
Carson seem to have been in substantial agreement as to the basis of the principle.

“First, it was argued that the Government of Kelantan was not an independent sovereign state, so as to be entitled by international law to the immunity against legal process which

was defined in The Parlement Belge. It has for some time been the practice of our courts, when such a question is raised, to take judicial notice of the sovereignty of a state,
and for that purpose (in any case of uncertainty) to seek
information from a Secretary of State; and when information
is so obtained the court does not permit it to be questioned
by the parties.” (Per Viscount Cave at pp 805-806)

“It is settled law that it is for the court to take judicial conclusive. … There are a great many matters of which the court is bound to take judicial cognizance, and among them are all questions as to the status and boundaries of foreign powers. In all matters of which the court takes judicial cognizance the court may have recourse to any proper source of information. It has long been settled that on any question of the status of any foreign power the proper course is that the court should apply to His Majesty’s Government, and that in any such matter it is bound to act on the information given to them through the proper department. Such information is not in the nature of evidence; it is a statement by the Sovereign of this country through one of his ministers upon a matter which is peculiarly within his cognizance.” (Per Viscount Finlay at p 813)

cognizance of the status of any foreign government. If there
can be any doubt on the matter the practice is for the court
to receive information from the appropriate department of

“… I agree with your Lordships that the courts of this country
are bound to take judicial notice of the status of any other
country in accordance with the information afforded to them
by the proper representative of the Crown. … Indeed, it is
difficult to see in what other way such a question could be
decided without creating chaos and confusion, …” (Per Lord

Carson at p 830)

Lord Dunedin considered that the source of the principle was in international comity.

“If our sovereign recognizes and expresses the recognition through the mouth of his minister that another person is a sovereign, how could it be right for the courts of our own

sovereign to proceed upon an examination of that person’s supposed attributes to examine his claim and, refusing that claim, to deny to him the comity which their own sovereign had conceded?” (Per Lord Dunedin at p 820)

Lord Sumner, however, found the source of the principle in the best evidence rule.

“The status of foreign communities and the identity of the inquire whether the Colonial Office rightly concluded that the Sultan was entitled to be recognized as a sovereign by international law. All it had to do was to examine the communication in order to see if the meaning of it really was the Sultan had been and was recognized as a sovereign.

high personages who are the chiefs of foreign states, are
matters of which the courts of this country take judicial
notice. Instead of requiring proof to be furnished on these
subjects by the litigants, they act on their own knowledge or,
if necessary, obtain the requisite information for themselves.
I take it that in so doing the courts are bound, as they would
be on any other issue of fact raised before them, to act on
the best evidence and, if the question is whether some new
state or some older state, whose sovereignty is not
notorious, is a sovereign state or not, the best evidence is a

78. I consider that the most satisfactory explanation of the one voice principle lies

within the cognisance of the executive which has the conduct of foreign relations.

statement, which the Crown condescends to permit the
appropriate Secretary of State to give on its behalf. It is the
prerogative of the Crown to recognize or to withhold
recognition from states or chiefs of states, and to determine
from time to time the status with which foreign powers are
to be deemed to be invested. This being so, a foreign ruler,
whom the Crown recognizes as a sovereign, is such a
sovereign for the purposes of an English court of law, and the
best evidence of such recognition is the statement duly made
with regard to it in His Majesty’s name. Accordingly where
such a statement is forthcoming no other evidence is
admissible or needed. I think this is the real judicial
explanation why it was held that the Sultan of Johore was a
foreign sovereign. In considering the answer given by the
…

I conceive that, if the Crown declined to answer the inquiry, as in changing and difficult times policy might require it to do, the court might be entitled to accept secondary evidence in default of the best, …” (Lord Sumner at pp 823-825)

77.        Lord Sumner’s view of the principle as one of evidence and of an executive

Duff para 75 above). In The Arantzazu Mendi [1939] AV 256, 264 Lord Atkin rejected “the opinion implied in the speech of Lord Sumner … that recourse to His Majesty’s Government is only one way in which the judge can ascertain the relevant fact”. In Lord Atkin’s view it was for the domestic sovereign to decide whom he will recognise and questions of status before the courts necessarily flowed from that decision alone.
certificate as the best evidence available to the court has not found favour. In

in the view that certain matters are facts of state in the sense that they are peculiarly attitude of the executive, of which the executive statement can be the only authoritative source and which should therefore be treated as conclusive. This is a point made by Viscount Finlay in Duff Development (at p 813, cited above) and taken up by Professor Clive Parry in A British Digest of International Law, (para 70 above), pp 215-216:

“it is clear that the executive certificate commonly relates to the question whether or not the Crown has done a particular act or adopts or has adopted a particular attitude: whether,

for instance, the Crown has or has not recognised a foreign state or government, or has declared war, or has claimed or claims jurisdiction or territorial sovereignty with respect to a given place. Where such a matter is in question, the
statement of the Crown, in the form of the executive
certificate, would seem to be necessarily conclusive. In such a
case the matter is indeed ‘peculiarly within [the] cognizance’
of the Crown, as Lord Finlay expressed it in Duff Development
Co v Government of Kelantan. In such a case also the
certificate itself, or its equivalent, may constitute the very act
of the Crown which is certified, as for instance in The
Fagernes [1927] P 311 …, where the Crown’s disclaimer of
jurisdiction over a place in the middle of the Bristol Channel
was made by the Attorney General in open court …, or in
Duff’s case … where the Attorney General maintained in
argument that the Colonial Office’s statement in relation to
the status of Kelantan ‘amounted to a recognition’. And cases
where the certificate has been refused or appears

In the result, the Court of Appeal therefore agreed with the holding of Hamblen J at
first instance, [2011] EWHC 1461 (Comm); [2012] 1 All ER (Comm) 479, para 201, that

“there is no rule against passing judgment on the judiciary of a foreign country”.

“As a member of the family of nations, the Government of the United Kingdom (of which this court forms part of the judicial branch) observes the rules of comity, videlicet, the accepted rules of mutual conduct as between state and state

which each state adopts in relation to other states and
expects other states to adopt in relation to itself. One of
those rules is that it does not purport to exercise jurisdiction
over the internal affairs of any other independent state, or to
apply measures of coercion to it or to its property, except in

accordance with the rules of public international law.

… For the English court to pronounce upon the validity of the
law of a foreign sovereign state within its own territory, so
that the validity of that law became the res of the res judicata
in the suit, would be to assert jurisdiction over the internal
affairs of that state. That would be a breach of the rule of
comity. In my view, this court has no jurisdiction so to do.”

166. Similarly, in R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet

Ugarte (No 3) [2000] 1 AC 147, a case concerning a claim of immunity by General
Pinochet, a former head of state of Chile, Lord Millett referred to the close relationship
between state immunity ratione materiae (ie subject matter immunity) and the Anglo-
American act of state doctrine. He observed (at p 269F):

“The immunity finds its rationale in the equality of sovereign courts of one state cannot sit in judgment on the sovereign acts of another …”

states and the doctrine of non-interference in the internal
affairs of other states: see Duke of Brunswick v King of
Hanover (1848) 2 HL Cas 1; Hatch v Baez, 7 Hun 596;

167. In the same case, Lord Phillips explained that there were two explanations for

immunity ratione materiae. The first was that to sue an individual in respect of the
conduct of the state’s business was indirectly to sue the state. He continued (at p
286B-D):

“The second explanation for the immunity is the principle restraint, held themselves not competent to entertain litigation that turns on the validity of the public acts of a foreign state, applying what has become known as the act of state doctrine.”

that it is contrary to international law for one state to
adjudicate upon the internal affairs of another state. Where a
state or a state official is impleaded, this principle applies as
part of the explanation for immunity. Where a state is not
directly or indirectly impleaded in the litigation, so that no
issue of state immunity as such arises, the English and

168. A further statement to similar effect is to be found in Oetjen v Central Leather Co (1918) 246 US 297 (see para 133 above).

169. The act of state principle under consideration would therefore prohibit courts in

certain executive acts of a foreign state on the ground that to do so would constitute
an objectionable interference with the internal affairs of that state. This rationale can
have no application, however, where courts in this jurisdiction merely give effect to a
judicial decision whereby the courts of the foreign state concerned, acting within their
proper constitutional sphere, have previously declared the executive acts to be
unlawful and nullities. If a UK court were to give effect to such a foreign judgment, it
would not itself be sitting in judgment on the executive act but giving effect to the
view of it taken by the judicial branch of government within the foreign state. Lord
Neuberger’s Rule 2 could therefore have no application to such a situation.

this jurisdiction from questioning or adjudicating upon the lawfulness or the validity of the protection of any such rule of non-justiciability, it may in certain circumstances nevertheless be appropriate to recognise or give effect to them in accordance with domestic rules of private international law. If, for example, an executive act of the US President were to be declared unconstitutional by a judgment of the US Supreme Court, recognition of that judgment (if it were otherwise entitled to recognition before UK courts) would not involve any investigation into or adjudication upon the internal affairs of the United States so as to bring the act of state principle into operation. The matter was neatly expressed by Males LJ in the Court of Appeal in the present case ([2021] QB 455, para 150):

“There is, however, no want of comity in holding that the act
of state doctrine does not require the English court to treat

as valid and effective as a sovereign act of executive power
that which the foreign court has held to be unlawful and
therefore null and void, while recognition of the separation
of powers should operate both ways. To recognise the
decision of the foreign court, acting within its own sphere of
responsibility under the constitution of the foreign state, is in
accordance with principles of comity and the separation of

powers.”

“The principle is that the English courts will not adjudicate on the lawfulness or validity of a state’s sovereign acts under its own law.”

In Belhaj Lord Neuberger observed (at para 135):

“Sovereignty, which founds the basis of the Doctrine, more fundamental competence than the power to make laws.”

‘denotes the legal competence which a state enjoys in
respect of its territory’ (Brownlie’s Principles of Public

173. In the Court of Appeal, Males LJ ([2021] QB 455, paras 140-141) carefully

explained the significance of the Transition Statute to this part of the Guaidó Board’s case. The Guaidó Board does not suggest that Mr Guaidó was entitled, as a matter of Venezuelan law, to appoint members of the board of the BCV or to appoint a Special Attorney General by virtue of his position as interim President. Its case is that the

National Assembly was entitled to and did pass the Transition Statute, a legislative act of the state of Venezuela, which authorised Mr Guaidó to make those appointments and that that attracts both Rule 1 and Rule 2. However, Rule 1 can only apply if the Transition Statute is to be regarded as a legislative act of the state of Venezuela.

174.     The effect of Rule 1 is that courts in this jurisdiction would not normally

entertain a direct challenge to a foreign state’s legislation such as that brought by the Maduro Board in relation to the Transition Statute. Teare J accepted ([2021] QB 455, para 64) that there was credible evidence before the court that the Transition Statute
Yukos (see para 151, above), it is clear that the challenge to the lawfulness and validity of the Transition Statute and the executive acts of appointment taken pursuant to it lie at the heart of this case. This is not a matter of merely ancillary or collateral aspersion. The Maduro Board’s case involves a direct attack on legislation passed by the Legislative Assembly.
is the act of the Venezuelan legislature, namely evidence that it had been issued and submits that the issue as to the lawfulness or validity of the Transition Statute and the subsequent executive acts arise only incidentally. It accepts that this issue has to be decided in order to determine who controls the arbitration and the gold, but submits that determining the lawfulness or validity of this legislative act is not the purpose or object of either claim. I am unable to accept this submission. Applying the test formulated by Rix LJ in
signed by the officers of the National Assembly and that it bore the seal of the interim

175.     In the present case, however, there exist judgments of the STJ which hold that

the Transition Statute is, as a matter of Venezuelan law, a nullity. In particular, that result is said to flow from the judgment of the STJ of 1 August 2016 holding that all decisions taken by the National Assembly would be null and void for so long as the Assembly was constituted in breach of the judgments and orders of the STJ. The

Guaidó Board submits that those judgments should not be recognised or given effect in this jurisdiction on grounds of failure of due process and lack of impartiality on the part of the STJ judges.

176.     The resulting situation closely resembles that in relation to Rule 2 which has

been addressed above. The rationale of Rule 1 is similar to that of Rule 2. For courts in this jurisdiction to rule on the lawfulness or validity of the legislation or other laws of a foreign state would be an unwarranted intrusion into its internal affairs and a breach
of comity. This is readily apparent from Buck v Attorney General, a case involving a challenge to the constitution of Sierra Leone, in which, as we have seen, Diplock LJ considered ([1965] Ch 745, 770) that to pronounce on the validity of a law of a foreign
sovereign state within its own territory, so that the validity of that law became the res of the res judicata in the suit, would be to assert jurisdiction over the internal affairs of that state. However, no such objectionable intrusion would occur where the courts of
one state were merely recognising or giving effect to judgments by the courts of
another. In my view, such a situation would fall outside the scope of Rule 1.

177. Rule 1 would prohibit a challenge to the lawfulness or validity of the Transition

effect in this jurisdiction. Such a judgment would not itself attract any enhanced status
by virtue of the act of state doctrine which has no application to judicial decisions. The
question then becomes whether, and if so to what extent, courts in this jurisdiction
should give effect to judgments of the STJ, a matter which falls outside the scope of
the preliminary issues raised on this appeal and which will have to be addressed by the

Statute, save to the extent that a judgment of the STJ is to be recognised or given account of and rule upon the Guaidó Board’s challenge to the decisions of the STJ on grounds of failure of due process and lack of impartiality. Furthermore, it must be emphasised once again that effect could only be given to such foreign judgments subject to the overriding operation of the public policy of the forum which will necessarily include the effective application of the one voice principle. As a result, no recognition or effect could be given to a judgment of the STJ if and to the extent that to do so would conflict with the recognition by HMG of Mr Guaidó as the interim President of Venezuela.

178.     The Maduro Board maintains that there are other constitutional reasons why

the appointments of the Special Attorney General and the Guaidó Board are invalid. Board’s written case - is its submission that the Transition Statute cannot be effective legislation because it has not been published in the Official Gazette as required by article 215 of the Venezuelan Constitution. Once again, Rule 1 would in my view prohibit a challenge on this ground to the lawfulness or the validity of the Transition Statute, save to the extent that there may exist a judicial ruling of the STJ to which effect should be given by courts in this jurisdiction in accordance with domestic rules of private international law and the public policy of the forum.

179.     It is necessary to refer to a further submission on behalf of the Maduro Board

that the BCV is not a “decentralized entity abroad” within the Transition Statute, with result, Rule 1 is not engaged. The Guaidó Board then submits that to the extent that this argument is deployed to challenge the validity of the executive acts of appointment it is precluded by Rule 2. The applicability of Rule 2 to the present case has been considered earlier in this judgment. Finally, the Guaidó Board submits that the National Assembly has confirmed by its Resolution dated 19 May 2020 that the BCV is a decentralised entity within the meaning of the Transition Statute and that this Resolution is a legislative act which a court in the United Kingdom will not question. If and to the extent that the Maduro Board may seek to challenge the lawfulness or validity of the Resolution of 19 May 2020, Rule 1 would prohibit such a challenge, save to the extent that a judgment of the STJ is to be recognised or given effect in this jurisdiction.
the result that the enabling power in article 15 does not extend to permit
appointments in relation to the BCV. This point was not developed before us. It seems
to be accepted by both parties that this is not an attack on the validity of the Transition

180.     Finally in this regard, I should point out that in the light of the conclusion to

which I have come in relation to Rule 2, Rule 1 is not necessary to the analysis of this case since Rule 2 has the effect (subject to the STJ judgments) that the validity of the executive acts of Mr Guaidó in appointing members of the BCV board cannot be
questioned by courts in this jurisdiction. Whether the validity of the underlying

legislation can be questioned is, therefore, immaterial.

Conclusion

181.     For these reasons I would allow the appeal in part and dismiss the cross-appeal.

(1) Courts in this jurisdiction are bound by the one voice principle to accept

the statements of the executive which establish that Mr Guaidó is recognised by is not recognised by HMG as President of Venezuela for any purpose. It is appropriate to grant declaratory relief to that effect.

(2)(a) There exists a rule of domestic law that, subject to important exceptions, courts in this jurisdiction will not adjudicate or sit in judgment on the lawfulness or validity under its own law of an executive act of a foreign state, performed

within the territory of that state.

(b) There exists a rule of domestic law that, subject to important exceptions, courts in this jurisdiction will recognise and will not question the effect of a foreign state’s legislation or other laws in relation to any acts which take place or take effect within the territory of that state.

Accordingly, subject to (3) below, courts in this jurisdiction will not question the lawfulness or validity of: (i) Decrees Nos 8 and 10 issued by Mr Guaidó; (ii) the appointment of the Special Attorney General; or (iii) the appointment of the Ad Hoc Administrative Board of the BCV (ie the Guaidó Board).

(3) However, in agreement with the Court of Appeal, I consider that, to the extent that the Maduro Board may rely on judgments of the STJ to which recognition or effect should be given by courts in this jurisdiction in accordance with domestic rules of private international law and the public policy of the forum, the rules identified in para 2(a) and (b) above would not be engaged. It is therefore necessary for the proceedings to be remitted to the Commercial Court for it to consider whether the judgments of the STJ should be recognised or given effect in this jurisdiction.