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Local Authority of Vasteras v. Republic of Iceland

Published online by Cambridge University Press:  30 March 2017

Said Mahmoudi
Said Mahmoudi*
Affiliation:
Stockholm University
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Abstract

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Type
International Decisions
Information
American Journal of International Law , Volume 95 , Issue 1 , January 2001 , pp. 192 - 197
Copyright
Copyright © American Society of International Law 2001

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References

1 The total number of Supreme Court cases having any connection to state immunity is not more than ten. Half of these cases belong to the period before World War II.

2 This contract (on file with author) is a revised version of a contract on the same subject concluded in May 1991. It is written in Swedish. Translations of the contract and of all other Swedish documents cited in this case report are by the author. This report uses contract for the Swedish word avtal, and agreement for the Swedish word överenskommelse. Both Swedish terms can, in principle, be used broadly to describe any sort of agreement. Although it is rather common to use överenskommelse for agreements between states, avtal is also used for international agreements, particularly those that have a rather limited subject matter. Avtal is almost always used to describe commercial contracts. The implications of these different words were not at issue in the case, and the use of contract in this report is not intended to resolve the underlying issue regarding the nature of the instrument.

3 Sveriges Internationella Överenskommelser [hereinafter SO] 1993:8. SO is the official collection of Sweden’s international agreements.

4 SÖ 1971:22. Both the 1971 Agreement on Cultural Co-operation Between Denmark, Finland, Iceland, Norway and Sweden (1971 Agreement) and 1992 Agreement on a Nordic Common Education at the Upper Secondary School Level (1992 Agreement) were concluded in all five Nordic languages.

5 Article 3(e) of the 1971 Agreement provides: “The Parties shall expand the possibilities for students and others residing in any Nordic country to educate themselves and receive a degree in any other Nordic country’s educational organizations.”

6 In other Nordic countries these studies are financed by the state.

7 The Swedish Ministry of Education tried, without success, to settle the dispute through negotiations with the Icelandic Ministry that continued until 1997. In October of that year the Swedish ministry informed the Local Authority that the dispute could not be settled through diplomatic negotiations, and that the dispute was one between the Local Authority and Iceland.

8 It should be noted that although the Contract was between the Local Authority and the Icelandic Ministry, the action was brought against Iceland, not the ministry. In retrospect, one wonders whether doing so was either legally necessary or tactically wise.

9 Skollag 1985:1100.

10 Gymnasieförordning 1992:394.

11 The Court refers to a 1942 case that is probably its most comprehensive decision regarding immunity. The case concerned the British government’s claim of immunity from the jurisdiction of the Swedish courts to order the sequestration of a Norwegian-owned ship that was temporarily under British administration. In granting immunity, the Supreme Court delivered a detailed, well-reasoned decision that referred to the status of the principle of state immunity in Germany, France, the United Kingdom, and the United States, and made a clear distinction between acta jure gestionis and acta jure imperii. Nytt Juridiskt Arkiv, Avd. I, Rättsfall från Hägsta Domstolen [hereinafter NJA] 1942:24.

12 Local Authority of Vasteras v. Iceland, NJA 1999:112, at 825 [hereinafter Judgment].

13 NJA 1946:184.

14 The reporting lawyer who drafted the proposal for the Supreme Court’s decision had suggested that “through the provision in the Contract that stipulates that in the event of disputes, Swedish laws should be applicable, the Republic of Iceland, which as a sovereign state has a right to immunity from the Swedish courts’ jurisdiction, has waived its immunity.” Judgment, supra note 12, at 823-24. The Court, however, came to the completely opposite conclusion in its decision.

15 Malcolm Shaw, commenting on the 1978 State Immunity Act of the United Kingdom, writes, “A provision in an agreement that it is to be governed by the law of the UK is not to be taken as a submission [of a foreign state to the jurisdiction of UK courts].” Malcolm N. Shaw, International Law 517 (4th ed. 1997).

16 Press Release, Icelandic Ministry of Education and Culture (July 14, 1995).

17 Submission of the Republic of Iceland (Feb. 5, 1999) at 2, Judgment, supra note 12.

18 Submission of the Local Authority of Vasteras (Mar. 2, 1999) at 2, Judgment, supra note 12.

19 Changed Policy Concerning the Granting of Sovereign Immunity to Foreign Governments, 26 Dep’t St. Bull. 984, 984 (1952).