Advanced Search

State Immunity Act


Published: 1981

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$40 per month.
State Immunity (CAP. 412 1

CHAPTER 41 2

THE STATE IMMUNITY ACT

Arrangement of Sections
Section

1. Short title.
2. Interpretation.

PROCEEDINGS IN ANTIGUA AND BARBUDA BY
OR AGAINST OTHER STATES

3. General immunity from jurisdiction.

EXCEPTIONS FROM IMMUNITY

4. Submission to jurisdiction.
5. Commercial transactions and contracts to be performed

in Antigua and Barbuda.
6. Contracts of employment.
7. Personal injuries and damage to property.
8. Ownership possession and use of property.
9. Patents, trade-marks etc.

10. Membership of bodies corporate etc.
11. Arbitrations.
12. Ships used for commercial purposes.
13. Customs duties etc.

14. Service of process and judgments in default of appear-
ance.

15. Other procedural privileges.

LAWS OF ANTIGUA AND BARBUDA

2 CAP. 412) State Immunity

16. States entitled to immunities and privileges.
17. Restrictions and extension of immunities and privileges.
18. .Excluded matters.

Judgments against Antigua and Barbuda in Convention States.

19. Recognition ofjudgments against Antigua and Barbuda.
20. Exceptions to recognition.

Miscellaneous and Supplementary.

21. Heads of State.
22. Evidence by certificate.

LAWS OF ANTIGUA AND BARBUDA

State Immunity (CAP. 412 3

STATE IMMUNITY

(1st Octobq 1981.)

1. This Act may be cited as the State Immunity Act. ShO"title.

2. (1) In this Act. Interpretation.

"Antigua and Barbuda" means the territory comprising
the islands of Antigua, Barbuda, Redonda and con-
tiguous islets, and, where the context so requires,
the government of the said territory;

"the Brussels Convention" means the International
Convention for the Unification of Certain Rules
Concerning the Immunity of State-owned Ships
signed in Brussels on 10th April 1926;

"commercial purposes" means purposes of such trans-
actions or activities as are mentioned in section 5
(3) below;

"court" includes any tribunal or body exercising judicial
functions;

"duty of customs" includes any customs duty, customs
surcharge and any consumption tax or duty;

"the European convention on State Immunity" means
the Convention of that name signed in Basle on
16th May 1972;

"the Governor-General" means the Queen's Represen-
tative in Antigua and Barbuda, howsoever called
or styled, acting in accordance with the advice of
the Cabinet;

"ship" includes hovercraft; and,

LAWS OF ANTIGUA AND BARBUDA

4 CAP. 412) State Immunity

reference to entry of appearance and judgments in default
of appearance includes reference to any corresponding pro-
cedures.

' ( 2 ) In sections 4 ( 2 ) and 15 ( 3 ) below reference to an
agreement include reference to a treaty, convention or
other international agreement.

( 3 ) In sections 5 ( I ) , 6 ( l ) , and 7 and 18 ( 2 ) below ref-
erences to Antigua and Barbuda include references to its
territorial sea.

PROCEEDINGS IN ANTIGUA AND BARBUDA BY OR
AGAINST OTHER STATES

Generalimmunity 3. ( 1 ) A state is immune from the jurisdiction of the from jurisdiction.
courts of Antigua and Barbuda except as provided in the
following provisions of this Part of this Act.

( 2 ) A court shall give effect to the immunity conferred
by this section even though the State does not appear in the
proceedings in question.

Submission to
jurisdiction.

4. (1) A State is not immune as respects proceedings
in respect of which it has submitted to the jurisdiction of the
courts of Antigua and Barbuda.

( 2 ) A State may submit after the dispute giving rise to
the proceedings has arisen or by a prior written agreement;
but a provision in any agreement that it is to be governed by
the law of Antigua and Barbuda is not to be regarded as a
submission.

(3) A state is deemed to have submitted-

(a) if it has instituted the proceedings; or

(b ) subject to subsections (4) and (5) below, if it
has intervened or taken any step in the proceedings.

( 4 ) Subsection ( 3 ) (b) above does not apply to inter-
vention or any step taken for the purpose only of-

LAWS OFANTIGUA AND BARBUDA

(CAP. 412 State Immunllj - 3

(a) claiming immunity; or

(6) asserting an interest in propc*rry in c.ircurt~-
stances such that the State would have bccn enrit1c.d ti)
immunity if the proceedings had kr*n hrought a~ainst i t .

(5) Subsection (3) (6) above docs not apply lo any stcp
taken by the State in ignorance of facu entitling i t t o lrntnit-
nity if those facts would not reasot~ably kavc twc.ctl ascertainc.d
and immunity is claimed as soon as reasctrial~ly practicable.

(6) A submission in respcct of' any proceedings
extends to any appeal but not to any counter-claim unless it
arises out of the same legal relationship or- facts as the claim.

(7) The head of a State's diplomatic mission in
Antigua and Barbuda or the person for the time being per-
forming his functions, shall be deemed to have authority to
submit on behalf of the State in respect of any proceedings;
and any person who has entered into a contract on behalf of
and with the authority of a State shall be deemed to have
authority to submit on its behalf in respect of proceedings
arising out of the contract.

5. (1) A State is not immune as respects proceedings transactions commercial and
relating to- contracts to be -

performed in
(a) a commercial transaction entered into by the Antipaand

State; or Barbuda.

(6) an obligation of the State which by virtue of a
contract (whether a commercial transaction or not)
falls to be performed wholly or partly in Antigua and
Barbuda.

(2) This section does not apply if the parties to the dis-
pute are States or have otherwise agreed in writing; and sub-
section (1) (b) above does not apply if the contract (not
being a commercial transaction) was made in the territory
of the State concerned and the obligation in question is gov-
erned by its administrative law.

(3) In this section "commercial transaction" means-

(a) any contract for the supply of goods or services;

LAWS OF ANTIGUA AND BARBUDA

6 CAP. 412) State Immunity

(b) 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 obliga-
?on; and

(c) any other transaction or activity (whether of a
commercial, industrial, financial, professional or other
similar character) into which a State enters or in which
it engages otherwise than in the exercise of sovereign
authority;

but neither paragraph of subsection (1) above applies to a
contract of employment between a State and an individual.

Contracts of
employment.

6. (1) A State is not immune as respects proceedings
relating to a contract of employment between the State and
an individual where the contract was made in Antigua and
Barbuda or the work is to be wholly or partly performed
there.

(2) Subject to subsections (3) and (4) below, this section
does not apply if-

(a) at the time when the proceedings are brought
the individual is a national of the State concerned; or

(b) at the time when the contract was made the
individual was neither a national of Antigua and
Barbuda nor habitually resident there; or

(6) the parties to the contract have otherwise
agreed in writing.

(3) Where the work is for an office, agency or estab-
lishment maintained by the State in Antigua and Barbuda
for commercial purposes, subsection (2) (a) and (b) above
do not exclude the application of this section unless the
individual was, at the time when the contract was made,
habitually resident in that State.

(4) Subsection (2) (c) above does not exclude the
application of this section where the law of Antigua and
Barbuda requires the proceedings to be brought before a
court of Antigua and Barbuda.

LAWS OF ANTIGUA AND BARBUDA

State Immunity (CAP. 412

(5) In this section "proceedings relating to a contract
of employment" includes proceedings between the parties
to such a contract in respect of any statutory rights or duties
to which they are entitled or subject as employer or employee.

7. A State is not immune as respects proceedings in ~'~~~''~
respect of- property

( a ) death or personal injury; or

(b ) damage to or loss of tangible property caused
by an act or omission in Antigua and Barbuda.

8. (1) A State is not immune as respects proceedings ~ ~ ~ ~ ~ m d
relating to- use of property.

( a ) any interest of the State in, or its possession or
use of, immovable propqty in Antigua and Barbuda; or

(b ) any obligation of the State arising out of its
interest in, or its possession or use of any such property.

(2) A State is not immune as respects proceedings
relating to any interest of the State in movable or immov-
able property, being an interest arising by way of succession,
gift or bona uacantia.

(3) The fact that a State has or claims an interest in any
property shall not preclude any court from exercising in
respect of it any jurisdiction relating to the estates of
deceased persons or persons of unsound mind or to insol-
vency, the winding up of companies or the administration of
trusts.

(4) A court may entertain proceedings against a per-
son other than a State notwithstanding that the proceedings
relate to property-

( a ) which is in the possession or control of a State;
or

(6) in which a State claims an interest,

if the State wo~tld not have been immuned had the proceed-
ings been brought against it or, in a case within paragraph
(b) above, if the claim is neither admitted nor supported by
prima facie evidence.

LAWS OF ANTIGUA AND BARBUDA

CAP. 412) State Immunity

Patents,
trade-marks etc.

Membership of
bodies corporate
etc.

Arbitrations.

Ships used for
commercial
purposes.

9. A State is not immune as respects proceedings
relating to-

( a ) any patent, trade-mark, design or plant breed-
ers' rights belonging to the State and registered or pro-
tected in Antigua and Barbuda or for which the State
has applied in Antigua and Barbuda;

( b ) an alleged infringement by the State in
Antigua and Barbuda of any patent, trade-mark,
design, plant breeders' rights or copyright; or

( c ) the right to use a trade or business name in
Antigua and Barbuda.

10. ( 1 ) A State is not immune as respects proceed-
ings relating to its membership of a body corporate, an
unincorporated body or a partnership which-

( a ) has members other than States; and

(6 ) is incorporated or constituted under the laws
of Antigua and Barbuda or is controlled from or has its
principal place of business in Antigua and Barbuda.

being proceedings arising between the State and the body
or its other members or, as the case may be, between the
State and the other partners.

( 2 ) This section does not apply if provision to the con-
trary has been made by an agreement in writing between
the parties to the dispute or by the constitution or other
instrument establishing or regulating the body or partner-
ship in question.

11. ( 1 ) Where a State has agreed in writing to submit
a dispute which has arisen, or may arise, to arbitration, the
State is not immune as respects proceedings in the courts of
Antigua and Barbuda which relate to the arbitration.

( 2 ) This section has effect subject to any contrary pro-
vision in the arbitration agreement and does not apply to
any arbitration agreement between States.

12. ( 1 ) This section applies to-
( a ) Admiralty proceedings; and

LAWS OF ANTIGUA AND BARBUDA

State Immunity (CAP. 412 9

(b ) proceedings on any claim which could be
made the subject of Admiralty proceedings.

( 2 ) A State is not immune as respects-

( a ) an action i n rem against a ship belonging to
that State; or

(b ) an action i n personam for enforcing a claim in
connection with such a ship;

if, at the time when the cause of action arose, the ship was in
use or intended for use for commercial purposes.

(3) Where an action i n rem is brought against a ship
belonging to a State for enforcing a claim in connection
with another ship belonging to that State, subsection ( 2 ) ( a )
above does not apply as respects the first-mentioned ship
unless, at the time when the cause of action relating to the
other ship arose, both ships were in use or intended for use
for commercial purposes.

(4) A State is not immune as respects-

( a ) an action i n rem against a cargo belonging to
that State if both the cargo and the ship carrying it
were, at the time when the cause of action arose, in use
or intended for use for commercial purposes; or

(6) an action i n personam for enforcing a claim in
connection with such a cargo if the ship carrying it was
then in use or intended for use as aforesaid.

( 5 ) In the foregoing provisions references to a ship or
cargo belonging to a State include references to a ship or
cargo in its possession or control or in which it claims an interest;
and, subject to subsection (4) above, subsection (2) above
applies to property other than a ship as it applies to a ship.

(6) Sections 5 to 7 above do not apply to proceedings
of the kind described in subsection (1) above if the Brussels
Convention applies to both Antigua and Barbuda and the
State in question and the claim relates to the operation of a
ship owned or operated by that State, the carriage of cargo
or passengers on any such ship or the carriage of cargo
owned by that State on any other ship.

LAWS OF ANTIGUA AND BARBUDA

10 CAP. 412) State Immunity

Customs duties 13. A State is not immune as respects proceedings
etc.

relating to its liability for-

(a) any duty of customs or excise; or

( 6 ) rates in respect of premises occupied by it for
commercial purposes.

Service of 14. (1) Any writ or other document required to be
process and
judgmentsin served for instituting proceedings against a State shall be
default of served by being transmitted through the Ministry responsi-
appearance. ble for External Affairs to the Ministry responsible for the

External or Foreign Affairs of the State and service shall be
deemed to have been effected when the writ or document is
received at the latter Ministry.

(2) Any time for entering an appearance (whether
prescribed by rules of court or otherwise) shall begin to run
two months after the date on which the writ or document is
received as aforesaid.

(3) A State which appears in proceedings cannot
thereafter object that subsection (1) above has not been
complied with in the case of those proceedings.

(4) No judgment in default of appearance shall be
given against a State except on proof that subsection (1)
above has been complied with and that the time for enter-
ing an appearance as extended by subsection (2) above has
expired.

(5) A copy of any judgment given against a State in
default of appearance shall be transmitted through the
Ministry responsible for External Affairs to the Ministry
responsible for the External or Foreign Affairs of the State
and any time for applying to have the judgment set aside
(whether prescribed by rules of court or otherwise) shall
begin to run two months after the date on which the copy of
the judgment is received at the latter Ministry.

(6) Subsection (1) above does not prevent the service
of a writ or other document in any manner to which the

LAWS OF ANTIGUA AND BARBUDA

State Immunity (CAP. 412 11

State has agreed and subsections (2) and (4) above do not
apply where service is effected in any such manner.

(7) This section shall not be construed as applying to
proceedings against a State by way of counter-claim or to an
action in rem; and subsection (1) above shall not be con-
strued as affecting any rules of court whereby leave is
required for the service of process outside the jurisdiction.

15. (1) No penalty by way of committal or fine shall %&;;;F~~~~
be imposed in respect of any failure or refusal by or on
behalf of a State to disclose or produce any document or
other information for the purposes of proceedings in which
it is a party.

(2) Subject to subsections (3) and (4) below-

(a) relief shall not be given against a State by way
of injunction or order for specific performance or for
the recovery of land or other property; and

(6) the property of a State shall not be subject to
any process for the enforcement of a judgment or
arbitration award or, in an action in rem for its arrest,
detention or sale.

(3) Subsection (2) above does not prevent the giving
of any relief or the issue of any process with the written con-
sent of the State concerned; and any consent (which may be
contained in a prior agreement) may be expressed so as to
apply to a limited extent or generally; but a provision merely
submitting to the jurisdiction of the courts is not to be
regarded as a consent for the purposes of this subsection.

(4) Subsection (2) (6) above does not prevent the
issue of any process in respect of property which is for the
time being in use or intended for use for commercial pur-
poses; but, in a case not falling within section 12 above, this
subsection applies to property of a State only if-

(a) the European Convention on State Immunity
applies both to Antigua and Barbuda and to the State;
and,

(b) the process is for enforcing a judgment which
is final within the meaning of section 19 (1) (6) below

LAWS OF ANTIGUA AND BARBUDA

12 CAP. 412) State Immunity

and the State has made a declaration under Article 24
of the Convention; or

(c) the process is for enforcing an arbitration
award.

(5) The head of a State's diplomatic mission in Antigua
and Barbuda or the person for the time being performing
his functions, shall be deemed to have authority to give on
behalf of the State any such consent as is mentioned in sub-
section (3) above and, for the purposes of subsection (4)
above, his certificate to the effect that any property is not in
use or intended for use by or on behalf of the State for com-
mercial purposes shall be accepted as sufficient evidence of
that fact unless the contrary is proved.

States entitled to
immunities and

16. (1) The immunities and privileges conferred by
privileges. this Part of this Act apply to any foreign or commonwealth

State other than Antigua and Barbuda; and references to a
State include references to-

(a) the sovereign or other head of that State in his
public capacity;

(b) the government of that State; and

(c) any department of that government,

but not to any entity (hereafter referred to as a "separate
entity") which is distinct from the executive organs of the
government of the State and capable of suing or being sued.

(2) A separate entity is immune from the jurisdiction
of the courts of Antigua and Barbuda if, and only if-

(a) the proceedings relate to anything done by it
in the exercise of sovereign authority; and

(b) the circumstances are such that a State (or, in
the case of proceedings to which section 12 above
applies, a State which is not a party to the Brussels
Convention) would have been so immune.

(3) If a separate entity (not being a State's central
bank or other monetary authority) submits to the jurisdiction

LAWS OF ANTIGUA AND BARBUDA

State Immunzty (CAP. 412 IS

in respect of proceedings in the case of which it is entitled
to immunity by virtue of subsection (2) above, subsections
( I ) to (4) of section 15 above shall apply to it in respect of
those proceedings as if references to a State were references
to that entity.

(4) Property of a State's central bank or other mone-
tary authority shall not be regarded for the purposes of
subsection (4) of section 15 above as in use or intended for
use for commercial purposes; and where any such bank or
authority is a separate entity subsections (1) to (3) of that
section shall apply to it as if references to a State were refer-
ences to the bank or authority.

(5) Section 14 above applies to proceedings against the
constituent territories of a federal State; and the Governor-
General may by Order provide for the other provisions of
this Part of this Act to apply to any such constituent territory
specified in the Order as they apply to a State.

(6) Where the provisions of this Part of this Act do not
apply to a constituent territory by virtue of any such Order
subsections (2) and (3) above shall apply to it as if it were a
separate entity.

1'7. (1) If it appears to the Governor-General that Restrictions and
extension of

the immunities and privileges conferred by this Part of this immunities and
Act in relation to any State- privileges.

(a) exceed those accorded by the law of that State
in relation to Antigua and Barbuda; or

( b ) are less than those required by any treaty, con-
vention or other international agreement to which that
State and Antigua and Barbuda are parties,

the Governor-General may by Order provide for restricting
or, as the case may be, extending those immunities and priv-
ileges to such extent as appears to the Governor-General to
be appropriate.

(2) Any statutory instrument containing an Order
under this section shall be subject to annulment in pur-
suance of a resolution of the House of Representatives.

LAWS OF ANTIGUA AND BARBUDA

14 CAP. 412) State Immunity

Excludedmattem. 18. (1) This Part of this Act does not affect any
immunity or privilege conferred by the Diplomatic

Cap. 136. Immunities (Representatives of Overseas Countries) Act,
Cap. 137. the* Diplomatic Privileges (Extention) Act or the Consular
Cap. 96. Relations Act; and

(a) section 6 above does not apply to proceedings
concerning the employment of members of a mission
within the meaning of section 2 (2) ( 6 ) (iii) of the
Diplomatic Privileges (Extension) Act or of the members
of a consular post within the meaning of the First
Schedule to the Consular Relations Act;

(6 ) section 8 (1) above does not apply to pro-
ceedings concerning a State's title to or its possession
of property used for the purposes of a diplomatic
mission.

(2) This Part of this Act does not apply to proceed-
ings relating to anything done by or in relation to the
armed forces of a State while present in Antigua and
Barbuda with the consent of the Government and, in par-

Cap. 457. ticular, has effect subject to The United States Defence
Area (Agreement) Act.

(3) This Part of this Act does not apply to criminal pro-
ceedings.

(4) This Part of this Act does not apply to any proceed-
ings relating to taxation other than those mentioned in sec-
tion 13 above.

PART I1

Judgments against Antigua and Barbuda in Convention States.

Recognition of
judgments against 19. (1) This section applies to any judgment given
Antipand against Antigua and Barbuda by a court in another State
Barbuda. that is a party to the European Convention on State

Immunity, being a judgment-

( a ) given in proceedings in which Antigua was not
entitled to immunity by virtue of provisions corre-
sponding to those of sections 4 to 13 above; and

LAWS OF ANTIGUA AND BARBUDA

State Immunity (CAP. 412 15

( 6 ) which is final, that is to say, which is not or is
no longer subject to appeal or, if given in default of
appearance, liable to be set aside.

(2) Subject to section 20 below, a judgment to which
this section applies shall be recognised in any court in
Antigua and Barbuda as conclusive between the parties
thereto in all proceedings founded on the same cause of
action and may be relied on by way of defence or counter-
claim in such proceedings.

(3) Subsection (2) above (but not section 20 below)
shall have effect also in relation to any settlement entered
into by Antigua and Barbuda before a court in another State
that is a party to the Convention which under the law of that
State is treated as equivalent to a judgment.

(4) In this section references to a court in a State that
is a party to the Convention include references to a court in
any territory in respect of which it is a party.

20. (1) A Court need not give effect to section 19 $,",";::?''
above in the case of a judgment-

(a) if to do so would be manifestly contrary to
public policy or if any party to the proceedings in
which the judgment was given had no adequate oppor-
tunity to present his case; or

(b ) if the judgment is given without provisions cor-
responding to those of section 14 above having been
complied with and Antigua and Barbuda has not
entered an appearance or applied to have the judg-
ment set aside.

(2) A court need not give effect to section 19 above in
the case of a judgment-

(a) if proceedings between the same parties,
based on the same facts and having the same purpose-

(i) are pending before a court in Antigua and
Barbuda and were first to be instituted; or

(ii) are pending before a court in another State
that is a party to the Convention, were the

LAWS OF ANTIGUA AND BARBUDA

16 CAP. 412) State Immunity

first to be instituted and may result in a judg-
ment to which that section will apply; or

(6) if the result of the judgment is inconsistent
%th the result of another judgment given in proceed-
ings between the same parties and-

(i) the other judgment is by a court in Antigua
and Barbuda and either those proceedings
were the first to be instituted or the judgment
of that court was given before the first-men-
tioned judgment became final within the
meaning of subsection (1) (b) of section 19
above; or

(ii) the other judgment is by a court in another
State that is a party to the Convention and that
section has already become applicable to it.

(3) Where the judgment was given against Antigua and
Barbuda in proceedings in respect of which Antigua and
Barbuda was not entitled to immunity by virtue of a pro-
vision corresponding to section 8 (2) above, a court need
not give effect to section 19 in respect of the judgment if
the court that gave the judgment-

(a) would not have had jurisdiction in the matter if
it had applied rules of jurisdiction corresponding to
those applicable to such matters in Antigua and Barbuda;
or

(6) applied a law other than that indicated by
Antigua and Barbuda rules of private international law
and would have reached a different conclusion if it had
applied the law so indicated.

Miscellaneous and Supplementary,

Heads of State. 21. (1) Subject to the provisions of this section and
to any other necessary modifications, the Act of the United

1964 c. 81. Kingdom cited as the Diplomatic Privilegesbct 1964 (here-
inafter referred to as "the said Act") shall have the force of
law in Antigua and Barbuda in relation to-

(a) a sovereign or other head of State;

LAWS OF ANTIGUA AND BARBUDA

State Immunity (CAP. 412 17

(b ) members of his family forming part of his
household; and

(c) his private servants,

as it has in the United Kingdom in relation to the head of a
diplomatic mission, to members of his family forming part
of his household and to his private servants.

( 2 ) The immunities and privileges conferred by virtue
of subsection (1) (a) and (b) above shall not be subject to the
restrictions by reference to nationality or residence men-
tioned in Article 37 ( 1 ) or 38 in Schedule1 to the said Act.

( 3 ) Except as respects duties of customs or excise, this
section does not affect any question whether a person is
exempt from, or immune as respects proceedings relating
to, taxation.

(4) This section applies to the sovereign or other head
of any State on which immunities and privileges are con-
ferred by Part I of this Act and is without prejudice to the
application of that Part to any sovereign or head of State in
his public capacity.

22. A certificate by or on behalf of the Minister ~,":Z;:Y
responsible for External Affairs shall be conclusive evidence
on any question-

( a ) whether any country is a State for the purposes
of Part I of this Act, whether any territory is a
Constituent Territory of a federal State for those pur-
poses or as to the person or persons to be regarded for
those purposes as the head or government of a State;

(b ) whether a State is a party to the Brussels
Convention mentioned in Part I of this Act;

( c ) whether a State is a party to the European
Convention on State immunity, whether it has made a
declaration under Article 24 of that Convention or as to
the territories in respect of which Antigua and Barbuda
the United Kingdom or any other State is a party;

(d) whether, and if so when, a document has been
served or received as mentioned in section 14 ( 1 ) or
(5) above.