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The State Immunity Act of Canada

Published online by Cambridge University Press:  09 March 2016

H. L. Molot  and
M. L. Jewett
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Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 20 , 1983 , pp. 79 - 122
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Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 1983

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References

1 S.C. 1980-81-82, c. 95.

2 [1938] A.C. 485, at 490.

3 4 P.D. 129 (1879).

4 Ibid., 148.

5 5 P.D. 197 (1880).

8 11 U.S. 116 (1812).

7 Dessaulies v. Republic of Poland, [1944] S.C.R. 275; Brown v. S.S. Indochine, 21 Ex.C.R. 406 (1922); Thomas White v. The Ship Frank Dale, [1946] Ex.C.R. 555; Mehr v. Republic of China, [1956] O.W.N. 218.

8 Bank of the United States v. Planters’ Bank, 22 U.S. 904, at 907 (1824). The use of the governmental/commercial activity distinction for domestic constitutional law purposes has an extensive and somewhat complex history in the United States (see Wells, and Hallerstein, , “The Governmental-Proprietary Distinction in Constitutional Law,” 66 Virginia L.Rev. 1073 (1980))CrossRefGoogle Scholar. In Anglo-Canadian law it has been applied so as to limit the special status generally enjoyed by the Crown (see Food Controller v. Cork, [1923] A.C. 647, at 657, 665–7; R. v. Workmen’s Compensation Board, 39 W.W.R. (ns) 291, rev’d on other grounds, 42 W.W.R. (ns) 226, at 227-8; Alberta Government Telephones v. Selk, [1974] 4 W.W.R. 205, at 211; Robinson v. South Australia (No. 2), [1931] A.C. 704, at 715; Hoffman-La Roche & Co. A.G. v. Secretary of State for Trade and Industry, [1975] A.C. 295.

9 See, for example, Simmons, , “The Foreign Sovereign Immunities Act of 1976,” 46 Fordham L.Rev. 543, at 547–50 (1977).Google Scholar

10 26 Dep’t. State Bull. 984 (1952).

11 On the question of executive “suggestion” to the courts, see Laskin, J. in Democratic Republic of the Congo v. Venne, [1971] S.C.R. 997, at 1013-14Google Scholar, for a brief comparison of Canadian and United States positions. For a more detailed and comprehensive discussion, see Mann, , “Judiciary and Executive in Foreign Affairs,” in his Studies in International Law 391 (1973).Google Scholar

12 Foreign Sovereign Immunities Act, Pub.L. No. 54–583, 90 Stat. 2891, 28 U.S.C.A. § 1330, 1332(a)(2), (4), 1391(f). 1441(d), 1602–11.

13 Lauterpacht, , “The Problem of Jurisdictional Immunities of Foreign States,” 28 Brit. Y.I.L. 220 (1951).Google Scholar

14 Rahimtoola v. Nizam of Hyderabad, [1958] A.C. 379, at 422.

15 Cmnd. 5081.

16 C. 33.

17 [1977] A.C. 373.

18 [1977] Q-B. 529.

19 See discussion of positions in civil law jurisdictions in Lauterpacht, supra note 13; Sucharitkul, , State Immunities and Trading Activities in International Law (1959)Google Scholar; Sucharitkul, , “Immunities of Foreign States Before National Authorities,” 149 Recueil des Cours 87 (1976)Google Scholar; Sweeney, , International Law of Sovereign Immunity (1963).Google Scholar

20 Sinclair, , “The European Convention on State Immunity,” 22 Int’l & Comp.L.Q. 254, at 266–7.CrossRefGoogle Scholar

21 [1958] S.C.R. 263.

22 At 281.

23 Flota Marítima Browning de Cuba S.A. v. Republic of Cuba, [1962] S.C.R. 598.

24 Supra note 11.

25 See Castel, , “Exemption from the Jurisdiction of Canadian Courts,” 9 Canadian Yearbook of International Law 159 (1971)Google Scholar; Marasinghe, , “A Reassessment of Sovereign Immunity,” 9 Ottawa L.Rev. 474 (1977)Google Scholar; Kindred, , “Foreign Governments Before the Courts,” 53 Can. Bar Rev. 602 (1980)Google Scholar; Vincke, , “Certains aspects de l’évolution récente du problème de l’immunité de jurisdiction des Etats,” 7 Canadian Yearbook of International Law 224 (1969)Google Scholar; Molot, , “Suability, Taxability and Sovereign Immunity in Canada,” 22 Chitty’s L.J. 314 (1974).Google Scholar

2 68 D.L.R. (3d) 428.

27 Venne v. Democratic Republic of the Congo (1969), 5 D.L.R. (3d) 128 (Que. C.A.). See also Penthouse Studios Inc. v. Venezuela (1970), 8 D.L.R. (3d) 686; Allan Construction Ltd. v. Venezuela, [1968] R.P. 145.

28 Zodiak International Products Inc. v. Polish Peoples’ Republic (1978), 81 D.L.R. (3d) 656. While Master Davidson in Ferranti-Packard Ltd. v. Cushman Rentals Ltd. (1980), 26 O.R. (2d) 344, distinguished the Zodiak decision from having any application to a negligence claim against the New York State Thruway Authority, the Divisional Court reversed his order (30 O.R. (2d) 194) on the basis that the Authority was independent of the State and hence could not shield itself behind the latter’s immunity (infra notes 166–7).

28 Ibid., 659.

30 (1980), 103D.L.R. (3d) 520.

31 Ibid., 523.

32 Re Royal Bank and Corriveau (1981), 117 D.L.R. (3d) 199.

33 S.C. 1976–77, c. 31.

34 Supra note 3.

35 Supra note 6.

36 Supra note 13, at 221–37.

37 Democratic Republic of the Congo v. Venne, supra note 11, at 1013.

38 O’Connell, II, International Law 844 (2nd ed. 1970).Google Scholar

39 State Immunity Act 1978, c. 33.

40 Foreign Sovereign Immunities Act, supra note 12.

41 Democratic Republic of the Congo v. Venne, supra note 11, at 1016.

42 R.S.C. 1970, c. C-38.

43 Supra note 13, at 226–32.

44 Supra note 11, at 1016–17.

45 Schedule I of S.G. 1976–77, c. 31.

46 Schedule II of S.C. 1976–77, c. 31.

47 S.C. 1976–77, c. 31.

48 R.S.C. 1970 (2nd Supp.),c. 10.

49 S.C. 1977–78, c. 41.

50 R.S.C. 1970, c. V-6.

51 Supra note 47.

52 Reference re Powers of City of Ottawa and Village of Rockcliffe Park to Tax Foreign Legations, [1943] S.C.R. 208.

53 Supra note 21.

54 Ibid., 281 (per Locke J.).

55 Ibid., 266.

56 Ibid., 268.

57 See Laskin, , Canadian Constitutional Law 523 (4th ed. rev.)Google Scholar, and his concurring judgment in Natural Parents v. Superintendent of Child Welfare, [1976] 2 S.C.R. 751, and his dissents in Montcalm Construction Inc. v. Minimum Wage Commission, [1979] 1 S.C.R. 754; Four B Mfg. Ltd. v. United Garment Workers of America, [1980] 1 S.C.R. 1031.

58 Heads 24 and 1A of section 91 of the Constitution Act 1867–1982.

59 Offshore Mineral Rights Reference, [1967] S.C.R. 792, at 816.

60 [1947] A.C. 127, at 148–55.

61 Ibid., 151.

62 [1940] S.C.R. 49.

63 Ibid., 57–8.

64 Ibid., 63–4.

65 Ibid., 127, per Hudson J.

66 Laskin, , Canadian Constitutional Law, supra note 57, at 528–9.Google Scholar

67 56 S.C.R. 176 (1918).

68 Jones v. A.G. N.B., [1975] 2 S.C.R. 182, at 189.

69 [1978] 1 S.C.R. 61, at 72.

70 Laskin, op. cit. supra note 57, at 319–20.

71 Koowarta v. Bjelke-Petersen, 39 Aus.L.R. 417 (1982).

72 Ibid., 432.

73 Ibid., 486.

74 Bill S-19, 1980–81–82.

75 The Act was proclaimed into force on July 15, 1982 (Canada Gazette, Part I, page 5842, August 14, 1982).

76 Sen. Deb. 1980–81–82, at 2464.

77 March 19 and 26, April 9, and May 21, 1981.

78 Proceedings of Senate Committee on Legal and Constitutional Affairs, 13:4–5 (May ai, 1981).

79 The Bill was given second reading by the House of Commons and referred to the Committee on June 23, 1981 (H.C. Deb. 1980–81–82, at 10908). The Committee did not begin its consideration of the Bill until February 2, 1982.

80 Proceedings of House of Commons Committee on Justice and Legal Affairs, 60:3 (February4, 1982).

81 H.C. Deb. 1980–81–82, at 16793.

82 Senate Committee on Legal and Constitutional Affairs, 10:5, 23–4 (March 19, 1981).

83 The Bill as amended in Committee was given third reading by the Senate on May 27, 1981 (Sen. Deb. 1980-81-82, at 2464) and given first reading by the House of Commons on May 28, 1981 (H.C. Deb. 1980–81–82, at 10017).

84 Proceedings of Senate Committee on Legal and Constitutional Affairs, 13:4 (May 21, 1981), 12:14 (April 9, 1981).

85 Ibid., 13:4 and 12:26–7.

86 Ibid., 13:5 and 12:28–9.

87 Ibid., 13:5 and 12:6.

88 Ibid., 13:5 and 12:5.

89 Ibid., 13:5 and 12:7–8, 23–6.

90 Proceedings of House of Commons Committee on Justice and Legal Affairs, 60:4, 23–30 (February 4, 1982).

91 Third reading was given on April 30, 1982.

92 Supra note 12.

93 Supra note 15.

94 Supra note 16.

95 I Congreso del Partido, [1981] 2 All E.R. 1064.

96 Supra note 1.

97 Ibid., sec. 2.

98 Ibid., sec. 5. This particular formulation may serve to avoid the kind of problem which led Lords Wilberforce and Edmund Davies in I Congreso, supra note 95, to characterize the Cuban government’s acts in relation to one of the ships involved, in that case the Marble Islands, as governmental and therefore attracting immunity. Applying the sec. 5 test of “proceedings that relate to any commercial activity of a foreign state,” it would seem that the commercial activity leading up to the governmental act would be sufficient to invoke the application of sec. 5 and thus deny immunity.

99 Supra note 12, a8 U.S.C.A. § 1603(d).

100 There are, of course, other problems. What, for example is the nexus between the proceedings and the commercial activity? What does “relate to” in s. 5 of the Act mean in the context of a particular set of facts? Does the act giving rise to the cause of action sufficiently “relate to” the commercial activity? A similar situation has already arisen in the United States, in Yessenin-Volpin v. Novosti Press Agency, 443 F. Supp. 84g (S.D.N.Y. 1978). In that case the Court held that the acts alleged to have injured the plaintiff (defamatory articles) were not performed in connection with a commercial activity, journalism for profit, even though the defendant’s activities did have commercial aspects. In other words, the Court found that the act complained of must itself relate to commercial activity; it was not sufficient simply to find that the defendant engaged in commercial activity.

101 In the Hearings before the U.S. House of Representatives, the Legal Advisor of the State Department, responding to a question, stated:

We realize that we probably could not draft legislation which would satisfactorily delineate that line of demarcation between commercial and governmental. We therefore thought it was the better part of valor to recognize our inability to do that definitively and to leave it to the courts with very modest guidance. For example, the courts would inquire whether the activity in question is one which private parties ordinarily perform or whether it is peculiarly within the realm of governments.

Your question is a very searching one. It goes to the heart of this. But we, frankly, aside from mentioning that it should be not based on the purpose for which an activity occurred, but rather on its nature, we have decided to put our faith in the U.S. courts to work out progressively, on a case-by-case basis, and using such guidance as has already developed in the very large body of case law which exists, on the distinction between commercial and governmental.

Your question is an extremely penetrating one and I think the best I can say is that, following the example of most other countries, we have decided to put our trust in the courts to work that out.

(Hearings on H.R. 11315 Before the Subcomm. on Administrative Law and Governmental Relations of the House Comm. on the Judiciary, 94th Cong., ad Sess. 53 (1976)).

102 The Draft Convention on State Immunity prepared under the auspices of the International Law Association takes a hybrid approach between the U.S. and U.K. statutes. It provides:

The term “commercial activity” refers either to a regular course of commercial conduct or a particular commercial transaction or act. It shall include any activity or transaction into which a foreign State enters or in which it engages otherwise than in the exercise of sovereign authority and in particular:

  • 1.

    1. Any arrangement for the supply of goods or services;

  • 2.

    2. Any financial transaction involving lending or borrowing or guaranteeing financial obligations.

In applying this definition, the commercial character of a particular act shall be determined by reference to the nature of the act, rather than by reference to its purpose.

(International Law Association, Report of the Sixtieth Conference held at Montreal, August 39, 1983, to September 4, 1982, at 6.

103 Supra note 16.

104 Supra note 15.

105 Supra note 16, sec. 3(3) (c).

106 Proceedings of Senate Committee on Legal and Constitutional Affairs, 11:56, 14-15 (March 26, 1981).

107 The amendment suggested was along the lines of sec. 3(3) (b) of the U.K. State Immunity Act, which covers:

“… any loan or other transaction for the provision of finance and any guarantee or indemnity in respect of any such transaction or of any other financial obligation.”

108 The Committee was given the following reasons for leaving the definition general as in the U.S. approach:

  • (1)

    (1) flexibility

  • (2)

    (2) risk of the particular narrowing the general

  • (3)

    (3) difficulty of articulating exceptions and inclusions, resulting in circulatory provisions, as in U.K. statute

  • (4)

    (4) relative comprehensibility of test adopted

  • (5)

    (5) ability to rely more readily on U.S. jurisprudence.

In this respect, it was noted that, because employment contracts are dealt with under sec. 4 of the U.K. Act and it was intended that only that provision should govern the matter, that subject had to be expressly excluded from the earlier reference to (sec. 3(1) of the U.K. Act) and definition of (sec. 3(3)) “commercial transaction” in that Act. Further, in trying to define “commercial transaction” with some particularity and avoid the more general and comprehensive definition in the U.S. Act, the British legislation was then faced with the problem that the definition might well encompass non-commercial governmental activities. It therefore had to except activities engaged in “otherwise than in the exercise of sovereign authority” (sec. 3(3) (c) °f the U.K. Act) thereby requiring the courts to grapple with this second opposing concept rather than leaving them to interpret commercial activities alone.

(See Proceedings of House of Commons Committee on Justice and Legal Affairs, 60:17–19 (February 4, 1982).

109 “The “nature” test appears to have been first developed in its modern form in 1923: see Weiss, , “Compétence ou Incompétence des Tribunaux à l’Egard des Etats Etrangers,” 1 Recueil des Cours 521 (1923)Google Scholar. For criticism, see Lauterpacht, supra note 13; Triggs, , “Restrictive Sovereign Immunity: The State as International Trader,” 53 Aus.L.J. 244 and 296 (1979)Google Scholar, who on balance prefers the European Convention approach; Delaume, , “Public Debt and Sovereign Immunity: The Foreign Sovereign Immunities Act of 1976,” 71 Am.J.Int’1 L. 399, 404 (1977).CrossRefGoogle Scholar

110 Fitzmaurice, 14 Brit. Y.I.L. 117, at 121 (1933).

111 See, for example, the comprehensive survey conducted in volume 10 of Netherlands Y.I.L.

112 Victory Transport Inc. v. Comisoria General de Abastecimientos y Transportes, 336 F. ed 354 (ad Cir. 1964), cert, denied 381 U.S. 934 (1965).

113 Supra note 12.

114 7 U.S.C.A. § 1691 et seq.

115 The House Report on the Bill said:

Activities such as a foreign government’s sale of service or a product, its leasing of property, its borrowing of money, its employment or engagement of laborers, clerical staff or public relations or marketing agents, or its investment in a security of an American corporation, would be among those included within the definition.

(H.R. Rep. No. 1487, 94th Cong., 2d Sess., p. 12, at 16 (1976)). See also Delaume, “Public Debt and Sovereign Immunity: Some Considerations Pertinent to S. 566,” 67 Am.J. Int’l L. 745 (1973).

116 Supra note 11.

117 Supra note 23.

118 In Outboard Marine Corporation v. Pezetel, 461 F.Supp. 384 (D.C. Del. 1978), it was relatively easy for the court to conclude that the manufacturing and marketing of golf carts by a corporation formed for such purpose could hardly be considered uniquely governmental in nature. In addition, the corporation was a corporate entity separate and distinct from the government of Poland. See Note, “Sovereign Immunity - Jurisdictional Problems Involving the Foreign Sovereign Immunities Act and Extraterritorial Application of U.S. Antitrust Laws,” 13 Vanderbilt J. Transnatl.L. 835, at 846 (1980).

In Behring International v. Imperial Iranian Air Force, 475 F.Supp. 383 (D.N.J. 1979), the plaintiff, a freight forwarder, sought recovery for preparing goods for shipment by the Iranian Air Force. The District Court held that shipping goods was a commercial activity, and thus the defendant was not entitled to immunity.

In Arango v. Guzman Travel Advisory Corporation, 621 F.2d 1371 (C.A. Fla. 1980), the Dominican national airline was a defendant in an action in connection with “involuntary re-routing” of a vacation tour which included the plaintiffs. Although the court held the airline’s actions in connection therewith were not commercial, it permitted the action based on the plaintiff’s claims for breach of a warranty and contract based on the miscarriage and non-performance of the tour, and on the failure of the defendants to refund the price paid by the plaintiffs. See also Sugarman v. Aeromexico Incorporated, 626 F.2d 270, (C.A.N.J. 1980), where the commercial activity test was also applied.

In Gemini Shipping Incorporated, 647 F.2d 317 (C.A.N.Y. 1981), the purchase of grain from a United States company, operating under a United States government program providing financing for the sale of foods by an American company, was held to be a commercial activity, and a suit arising out of a breach of an alleged guarantee to the shipper delivering the grain was held to be “based upon” that commercial activity.

In Birch Shipping Corporation v. Embassy of Tanzania, 507 F.Supp. 311 (D.C.D.C. 1980), it was held that Tanzania’s chequing account was not immune, on the basis of consent, but also because the chequing account at issue was used for commercial activity and was therefore subject to attachment.

In China National Chemical Import and Export Corporation v. M.V. Lago Hualaihue, 504 F.Supp. 684 (D.C.Md 1981), an action was allowed in respect of the lien for damages in a collision allegedly due to negligence and unseaworthiness, “based upon a commercial activity of the foreign state,” and therefore there was no immunity.

In United Euram Corporation v. U.S.S.R., 461 F.Supp. 609, (D.C.N.Y. 1978), the State Concert Society of the Soviet Union entered into contracts in connection with a tour of the United States and Great Britain under a cultural exchange agreement between the U.S. and the Soviet Union. It was held that the “commercial activity” exception applied to a suit for breach of these contracts, despite the claim that the contracts were artistic and governmental in character, because the purpose of the activity was irrelevant in determining its commercial character.

In Castro v. Saudi Arabia, 510 F.Supp. 309 (D.C.Tex. 1980), a nonprofit agreement for the training of military personnel entered into between the U.S. and Saudi Arabia was held not commercial in nature.

In De Sanchez v. Banco Central de Nicaragua, 515 F.Supp. 900 (D.C.La. 1981), the claim of a Nicaraguan citizen for recovery of $150,000 on a cheque drawn in her favour by the Central Bank on its account with an American commercial bank was held to fall within the exception of commercial activity.

In Gibbons v. Udaras no Gaeltachta, 549 F.Supp. 1094 (D.C.N.Y. 1982), it was held that the actions of an industrial development entity of the Republic of Ireland, which entered into a joint venture agreement with U.S. citizens to manufacture cosmetics containers in Ireland, together with associated activities of another governmental agency, constituted “commercial activity” because the activities were those which a private party might customarily carry on for profit.

In Bankers Trust v. Worldwide Transportation Services et al. 537 F.Supp. 1101 (D.C. Ark. 1982), a Mexican government agency charged with stabilizing domestic price supports which was involved in the purchase and transportation of commodities from American companies, was held to be engaged in commercial activity.

119 International Association of Machinists and Aerospace Workers v. OPEC, 477 F.Supp. 553 (C.D.Cal. 1979). For a fuller discussion, see “Sovereign Immunity and the Suit Against OPEC,” 12 Case W.Res.J.Int’l L. 215 (1980). Cf. Matter of Sedeo, Inc., 543 F.Supp. 561 (D.C. Tex. 1982), where the exercise of jurisdiction over offshore drilling activities of the Mexican national oil company, Pemex, was denied “because the nature of Pemex’s act in determining the extent of Mexico’s natural resources was uniquely sovereign.” See also Carey v. National Oil Corp., 453 F.Supp. 1097, 1102 (D.C.N.Y. 1978), affirmed on other grounds, 592 F.2d 673 (C.A.N.Y. 1979), where the acts complained of, nationalization by Libya, were held not to be a commercial activity, because “nationalization is the quintessentially sovereign act, never viewed as having a commercial character.” This aspect of the case, to the extent it relies on the Victory Transport case, supra note 112, may be of dubious authority. The other principal basis for the ruling was a lack of sufficient jurisdictional contacts. The Carey case is discussed in, inter alia, Note, “Extraterritorial Jurisdiction and Foreign States: The Foreign Sovereign Immunities Act of 1976 - Carey v. National Oil Corp.,” 13 J.Int’l L. & Econ. 633 (1979).

120 Ibid., 567–8, where the court cited various UN Resolutions affirming the principle that a sovereign state has the sole power to control its natural resources.

121 Sucharitkul, State Immunities and Trading Activities in International Law 180. See also Cohn, , “Waiver of Immunity,” 34 Brit.Y.I.L. 260 (1958).Google Scholar

122 Brownlie, , Principles of International Law 340 (3rd ed.)Google Scholar. See also Lewis, , State and Diplomatic Immunity 61 (1980).Google Scholar

123 Holmsted, and Gale, , Ontario Judicature Act and Rules of Practice 1027.Google Scholar

124 For example, Rules 29 and 38 of Ontario Rules of Practice, R.R.O. 1980, Reg. 540.

125 Baccus S.R.L. v. Servicio Nacional del Trigo, [1957] 1 Q.B. 438.

126 Cohn, supra note 121, at 263–4; Note, “Sovereign Immunity — Waiver and Execution,” 74 Yale L.J. 887, at 894–6 (1965).

127 Supra note 16, sec. 2.

128 Supra note 12, §§ 1605(a)(1), 1607.

129 Supra note 1, sec. 4(2) (b). This is similar to sec. 2(3)(a) of the British Act.

130 Ibid., sec. 4(2) (c). This is similar to sec. 2(3) (b) of the British Act.

131 Ibid., sec. 4(2) (a). See Libra Bank Ltd. v. Banco Nacional de Costa Rica, 676 F.2d 1094 (C.A.N.Y. 1982); Maritime International Nominees v. Republic of Guinea, 693 F.2d 1094 (C.A.D.C. 1982); Birch Shipping Corp. v. Tanzania, supra note 118.

132 Supra note 16, sec. 2(2).

133 Supra note 1, sec. 4(3) (a). This is similar to sec. 2(4) (a) of the British Act.

134 Supra note 125.

135 Supra note 1, sec. 4(3) (b). This is similar to sec. 2(5) of the British legislation.

136 Supra note 16, sec. 2(6).

137 Supra note 12, § 1607(b).

138 Ibid., § 1607(c).

138 Supra note 16, sec. 2(6).

140 Sucharitkul, , “Immunities of Foreign States Before National Authorities,” supra note 19, at 100.Google Scholar

141 Trendtex Trading Corp. v. Central Bank of Nigeria, [1977] 1 Q.B. 529, at 559.

142 Krajina v. Tass Agency, [1949] 2 All E.R. 274; Baccus S.R.L. v. Servicio Nacional Del Trigo, supra note 125; Mellenger v. New Brunswick Development Corp., [1971] 2 All E.R. 593; Czarnikow Ltd. v. Rolimplex, [1979] A.C. 351.

143 Trendtex Trading Corp. v. Central Bank of Nigeria, supra note 141, at 560.

144 Though it may be critical to the distinct issue of whether the defendant is a juridical or suable entity.

145 Ferranti-Packard Ltd. v. Cushman Rentals Ltd., supra note 28, at 199.

146 Ibid., 197.

147 Saint John v. Fraser-Brace, supra note 21, at 268.

148 Supra note 1, sec. 9.

149 Ibid., sec. 12.

150 Ibid., secs. 10 and 11.

151 Ibid., sec. 9(3) (c).

152 Ibid., sec. 12.

153 Ibid., sec. II (2).

154 Ibid., sec. 10.

155 Supra note 12, § 1608(b).

158 Ibid., § 1610(b).

157 Supra note 16, sec. 14(1).

158 Ibid., sec. 14(2).

159 Delaume, , “The State Immunity Act of the United Kingdom,” 73 Am.J.Int’l L. 185, at 187 (1979).CrossRefGoogle Scholar

160 The Schooner Exchange v. McFaddon, supra note 6, at 136–7; Saint John v. Fraser-Brace, supra note 21, at 267–8, 279–80.

161 See views of Professor Castel in his evidence before the Senate Committee on Legal and Constitutional Affairs, supra note 78, at 11:6–7 (March 26,1981).

162 See Sucharitkul, “Immunities of Foreign States Before National Authorities,” supra note 19, at 101-3; Sinclair, supra note ao, at 279–80.

163 Supra note 14a. Of course, if the evidence discloses that what was formerly a provincial government has become part of the central government as a result of constitutional evolution, the jurisdictional issue will be resolved accordingly (Swiss Israel Trade Bank v. Government of Salta, [1972] 1 Lloyd’s Rep. 497, at 501). See also Meaamaile v. American Samoa, 550 F.Supp. 1227 (D.C. Hawaii 1982); Sablan Const. Co. v. Trust Territory of Pacific Islands, 526 F.Supp. 135 (D.C.N. Mariana Islands 1981).

164 Ibid., 598 per Salmon L.J.

165 Ibid., 595-6 per Lord Denning M.R.

166 Ferranti-Packard Ltd. v. Cushman Rentals Ltd., supra note 28.

167 Supra note 28.

168 Sinclair, supra note 20, at 2B0. At the 1977 meeting of Commonwealth Law Ministers, the then Canadian Minister of Justice stated that “… Canada had always taken the position that provinces or constituent parts of States were entitled to claim immunity, and it had been Canadian practice to recognise their right to do so” (Minutes of Meeting and Memoranda, Meeting of Commonwealth Law Ministers (1977), at 125).

168 Art. 28.

170 Sinclair, supra note 20, at 280.

171 State Immunity Act 1978, c. 33, sec. 14(5).

172 Supra note 12, § 1603(a).

173 Supra note 1, sec. 2.

174 proceedings of Senate Committee on Legal and Constitutional Affairs, supra note 78, at 11: 6–7 (March 26, 1981).

175 Supra note 84. See also explanation of B. L. Strayer before the Senate Committee on Legal and Constitutional Affairs, ibid., 12:5–6 (April 9, 1981).

176 Supra note 21, at 268.

177 Ibid., 269.

178 Supra note 32.

179 Corriveau v. Republic of Cuba, 103 D.L.R. (3d) 580.

180 Supra note 178, at 304. “1 Ibid.

182 R.S.C. 1970 (and Supp.), c. 10.

183 With the resolution of many of the issues relating to jurisdictional immunity of foreign states, attention has turned to this very difficult and yet extremely practical question. For example, see Crawford, “Execution of Judgments and Foreign Sovereign Immunity,” 75 Am.J.Int’l L. 820 (1981). Volume 10 of Netherlands Y.I.L. (1979) devoted itself almost entirely to this subject.

184 U.K. Act, supra note 16, sec. 1(1); U.S. Act, supra note 12, § 1604.

185 U.K. Act, ibid., sec. 13(2) (b); U.S. Act, ibid., § 1609.

186 Ibid., § 1610(a)(1).

187 U.K. Act, supra note 16, sec. 11 (1) (a).

188 Ibid., sec. 13(4). “Commercial purpose” is defined by sec. 17(1) of the Act in terms of transactions or activities to be found in sec. 3(3). See supra note 108.

189 U.S. Act, supra note 12, § 1610(a).

190 Delaume, supra note 159, at 195. This principle is applied as well in sec. II(I)(C) of the Canadian Act and in § 1610(a)(4) of the U.S. legislation.

191 Ibid., sec. II(1)(b).

192 Supra note 50.

193 Supra note 47.

194 Supra note 1, sec. II(3)(b).

195 Ibid., sec. 11(3) (a).

196 Supra note ia, § 1611(b) (2).

197 Supra note 1, sec. 11 (4).

198 See discussion in Proceedings of Senate Committee on Legal and Constitutional Affairs, supra note 78, 11:17–18 (March 26, 1981) and 13:5 (April 9, 1981).

199 Supra note ia, § 1611(b) (1).

200 Supra note 16, sec. 14(4).

201 Delaume, supra note 159.

202 It is to be recalled that an amendment was made by the Senate Committee on Legal and Constitutional Affairs to make this principle abundantly clear (supra note 87).

203 Goldenberg, , “Tort Actions Against the Crown,” [1973] Annual Lectures of Law Society of Upper Canada 341, at 384.Google Scholar

204 Supra note 16, sec. 14(3).

205 Ibid., sec. 14(2) (a).

206 Supra note 12, § 1610(b) (1).

207 Ibid., § 1610(b)(2).

208 Supra note 2i, at 268.

209 Supra note 16, sec. 13(2).

210 Canadian Act, supra note 1, sec. 10(2); U.K. Act, ibid., sec. 13(3).

211 Canadian Act, ibid., sec. 17; U.K. Act, ibid., sec. 16(4). See also sec. 13(1) of U.K. Act.

212 See testimony of B. L. Strayer in Proceedings of Senate Committee on Legal and Constitutional Affairs, supra note 78, at 10:7–8 (March 19, 1981).

213 Supra note 208.

214 Supra note 47.

215 Ibid., Schedule I, arts. 22(1) and (2), 29, 30 and 31.

216 Saint John v. Fraser-Brace, supra note 21, at 282 per Locke J. See also Abbott J. at 283-4.

217 Supra note 1, sec. 9(1) (a) and (b) for state itself, and sec. 9(3) (a) and (b) for state agency.

218 Ibid., sec. 9(a). See also Rule 30 of Ontario Rules of Practice, supra note 124.

218 Supra note 16, sec. 14(1).

220 Supra note 12, § 1608(a) and (b). See Harris Corp. v. National Iranian Radio and Television, 691 Fed. 1344 (C.A.Fla. 1982) where statutory provisions for service were overridden by virtue of the notice in question actually being received; International Schools Service v. Iran, 505 F.Supp. 178 (D.C.N.J. 1981), where service by telex was permitted.

221 Supra note 1, sec. 9(2).

222 Supra note 12, § 1608(a)(4).

223 Supra note 16, sec. 12(1).

224 Supra note 12, § 1608(a) (3).

225 Supra note 1, sec. 16.

228 It is also to be recalled that an incautious or complacent Cuba suffered this fate in Corriveau, supra note 32.

227 Supra note 1, sec. 9(5). See U.S. Act, supra note 12, § 1608(c) and U.K. Act, supra note 16, sec. 12 (1).

228 Ibid., sec. 9(6). See U.S. Act, ibid., § 1608(d) and U.K. Act, ibid., sec. 12(3) and (4).

229 In accordance with sec. 9(7) and (8).

230 Ibid., sec. 9(9). See U.K. Act, supra note 16, sec. 13(5).

231 See testimony of B. L. Strayer, supra note 212.

232 For example, see Walker, , The Courts of Law (1970)Google Scholar. See also the reference to the court of referees as an intermediate appeal tribunal under the National Insurance Act 1911, in Wade, , Administrative Law 740 (4th ed.).Google Scholar

233 Supra note 48, now repealed and replaced by sees. 36.1 to 36.3 of the Canada Evidence Act by virtue of S.C. 1980–81–82, c. in, sees. 3 and 4.

234 A.G. Quebec and Keable v. A.G. Canada, [1979] 1 S.C.R. 218, at 247.

235 Quebec Human Rights Commission v. A.G. Canada, 41 N.R. 318 (S.C.C.).

236 See the replacement of “court” and “tribunal” in sec. 41 of the Federal Court Act with this formulation (sees. 36.1 to 36.3 of Canada Evidence Act, supra note 233).

237 State Bank of India, 16 Int’l L. Materials 853 (1977); The German School Society, 1981–82 CCH NLRB 18,867 (1982).

233 Ibid., 862.

239 Ibid., 865.

240 Supra note 17.

241 Supra note 18.

242 Supra note 95.

243 Supra note 11.

244 Supra note 16, sec. 22 (1).

245 Sengupta v. Republic of India, The Times, November 18, 1982.