Hashwah and Others v Qatar National Bank (QPSC) and Others
| Jurisdiction | England & Wales |
| Neutral Citation | [2022] EWHC 2242 (Comm) |
| Year | 2022 |
| Court | King's Bench Division (Commercial Court) |
2022 May 3, 4, 5, 6; Oct 30
Judge
International law - State immunity - Statutory exception - Claims in respect of loss and damage allegedly caused by defendants’ participation in state-sponsored terrorism - Whether defendants enjoying state immunity in respect of claims - Whether funding or support of terrorism constituting sovereign or governmental act - Whether affording of state immunity contrary to United Kingdom’s obligations under United Nations Security Council resolution - Whether funding of terrorism “commercial transaction” so as to be exempt from immunity -
The claimants brought claims against the defendants, who were all individuals or entities associated with the state of Qatar, alleging that they had suffered injury, loss and damage caused by the defendants’ participation in a terrorist funding arrangement by which funds had been channelled to a terrorist group in Syria. The claimants contended that the terrorist funding arrangement had been made and carried into effect with the direct or indirect authority or acquiescence of Qatar, or of an individual or entity officially or unofficially authorised to give consent on Qatar’s behalf. The defendants applied for declarations that the court had no jurisdiction to hear the claims on the ground of state immunity pursuant to section 1 of the State Immunity Act 1978. The claimants opposed the application, asserting: (i) that the funding or support of international terrorism was not an inherently sovereign or governmental act so as to attract state immunity under section 1 of the 1978 Act; (ii) that to extend state immunity to those involved in the terrorist funding arrangement would be contrary to the United Kingdom’s obligations under United Nations Security Council Resolution 1373 (2001), which required any person participating in the financing of terrorist acts to be brought to justice, and/or would breach the claimants’ rights to a fair trial under article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms; and/or (iii) that the claim fell within the exception to immunity for proceedings relating to a “commercial transaction”, contained in section 3(1)(a) of the 1978 Act.
On the defendants’ application—
Held, allowing the application, (1) that providing support for terrorist activity that was state-sponsored was an inherently sovereign or governmental act, so as to fall within section 1 of the State Immunity Act 1978, since by definition such support could not be provided by a private citizen; and that, accordingly, since the claimants alleged that the terrorist funding arrangement in the present case had been carried into effect with the direct or indirect authority or acquiescence of the state of Qatar, or of an individual or entity officially or unofficially authorised to give consent on Qatar’s behalf, the carrying into effect of the scheme constituted a series of acts done in the exercise of sovereign authority, so as to fall within section 1 of the 1978 Act (post, paras 28–30).
(2) That whether and, if so, how and to what extent a resolution of the United Nations Security Council was to be carried into effect as a matter of domestic law depended on whether provision had been made under section 1 of the United Nations Act 1946 for enabling that resolution to be effectively applied; that although various Orders in Council had been made pursuant to section 1 of the 1946 Act in respect of Resolution 1373, none of them modified either the jurisdiction of the courts of England and Wales over civil claims or any of the provisions of the 1978 Act; that, in any event, there was nothing in Resolution 1373 that addressed either the question of civil jurisdiction by one United Nations member state over another concerning the alleged state funding of terrorism, nor did it address any issue concerning sovereign immunity, much less require or entitle states not to afford immunity to a state facing a claim such as that advanced by the claimants in the present case; that, further, the 1978 Act was to be construed applying the fundamental norm of customary international law that was the foundation of state immunity in the United Kingdom, which was not qualified so as to enable the 1978 Act to be construed in the way contended for by the claimants; that, consequently, since the claim to state immunity in the present case was not unfounded as a matter of international law, article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms could not be said to have been violated by affording the defendants immunity under the 1978 Act; and that, accordingly, it would not be contrary to Resolution 1373 or article 6 to afford the defendants state immunity (post, paras 36–42, 46–47).
(3) That the “commercial transaction” exception in section 3(1)(a) of the 1978 Act applied to claims arising out of the relevant transaction itself and not to claims arising independently of the transaction (albeit in the course of its performance) or claims arising out of some subsequent act (albeit that that act itself might loosely relate to the transaction); that, therefore, although some of the mechanisms by which Qatar allegedly provided state funding to the terrorist group using the defendants as its agents were or involved commercial transactions, that did not entitle the claimants to rely on the commercial transaction exception; and that, accordingly, the claimants’ claim was one over which the court had no jurisdiction or one over which it should not assert jurisdiction on state immunity grounds (post, paras 49–52).
The following cases are referred to in the judgment:
AIC Ltd v Federal Government of Nigeria
Ahmed v HM Treasury
Al-Malki v Reyes
Alcom Ltd v Republic of Colombia [
Belhaj v Straw
Benkharbouche v Embassy of the Republic of Sudan
Congreso del Partido, I [
General Dynamics United Kingdom Ltd v State of Libya
Golder v United Kingdom (Application No 4451/70) (
Heiser (Estate of) v Islamic Republic of Iran
Holland v Lampen-Wolfe [
Jones v Ministry of the Interior of the Kingdom of Saudi Arabia
Kuwait Airways Corpn v Iraqi Airways Co [
R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 3) [
Rayner (JH) (Mincing Lane) Ltd v Department of Trade and Industry [
Surkis v Poroshenko
Svenska Petroleum Exploration AB v Government of the Republic of Lithuania (No 2)
Tracy v Iran (Information and Security)
The following additional cases were cited in argument or referred to in the skeleton arguments of the claimants and first and second defendants:
Al-Adsani v United Kingdom (Application No 35763/97) (
Al Attiya v Al Thani
Al-Jedda v United Kingdom (Application No 27021/08) (unreported) 7 July 2011,
Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd
Argentum Exploration Ltd v The Silver (The Tilawa)
Assange v Swedish Prosecution Authority (Nos 1 and 2)
Assuranceforeningen Gard Gjensidig v International Oil Pollution Compensation Fund
BB v Al Khayyat
BB v Al Khayyat
Barclays Bank plc v Quincecare Ltd [
Behrami v France (Application Nos 71412/01 and 78166/01) (unreported) 2 May 2007,
Clarke v Marlborough Fine Art (London) Ltd [
Dynasty Co for Oil & Gas Trading Ltd v Kurdistan Regional Government of Iraq
Dynasty Co for Oil and Gas Trading Ltd v Kurdistan Regional Government of Iraq
ETI Euro Telecom International NV v Republic of Bolivia
Ghaidan v Godin-Mendoza
Hulley Enterprises Ltd v Russian Federation
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Corinna Zu Sayn-Wittgenstein-Sayn v HM Juan Carlos Alfonso
...situation altogether. 172 Mr Thompson also drew my attention to the very recent first instance decision in Haswah v Qatar National Bank [2023] 2 WLR 815 which he says is closer to the present situation. There, a claim was brought against various foreign persons said to have been acting for......