NEW DEVELOPMENTS IN THE LAW OF SOVEREIGN IMMUNITY
| Published date | 01 January 1973 |
| Author | F. A. Mann. |
| Date | 01 January 1973 |
| DOI | http://doi.org/10.1111/j.1468-2230.1973.tb01351.x |
NEW
DEVELOIWENTS IN
THE
LAW
014'
SOVE;REIGN IMMUNITY
I
FOR
many years there does not seem
to
have been an opportunity
for resuming the series of comments which in the course
of
the
decade from
1949
to
1958
appeared in these pages and dealt with
the case law on sovereign immunity.' In
1971,
however, that
doctrine again fell
to
be considered by the Court of Appeal in a
case which merits
a
few observations. In
Mellenger
v.
New
IIrunswiclc
Development Corporation
the defendant who was
alleged to have entered in London into a contract with the
plaintiffs, was a body corporate created by a New Brunswick
Statute of
1959
"
on behalf of Her Majesty in right to New
Brunswick." The evidence showed
it
(to be
"
part and parcel
"
or
the
"
alter ego
"
of the Government of New Brunswick
(per
Lord Denning M.R.,
at p.
609)
or
a department
or
arm
of the
Government
(per
Salmon
L.J.,
at
p.
611).
It
enjoyed, therefore,
such immunity as the Province of New Brunswick was entitled to.
The latter is, in the eyes
of
constitutional law, clearly sovereign
within the spahere allotted to
it
by the Bri,tish North America Act
1867.
As
was said in
Maritime Bank of Canada
v.
Receiver-General
of
New Bruns~en'ck,~
the Province
"
possesses powers, not of
administration, but of legislation in the strictest sense of the word,
and within the limits assigned by section
92
of the Act of
1867
these powers are exclusive and supreme."
The only question not discussed by the
tout
was whether
as
a
matter of public international law immunity ought to have been
denied to
the
province on the ground that it has no independent
international status and, accordingly, does not control foreign
affairs, but that it is Canada that enjoys international sovereignty
and statehood. The practice of the English courts docs not deprive
a
state of immunity merely by reason of the fact that it is not
in every respect independent
or,
in particular, that its foreign
affairs are carried on by another sovereign:
Duff
Development
Co.
v.
Government
of
Kelantan,'
a case which, though much
discussed and criticised, still represents the law and which,
in
regard Ito a province of the United States
of
Brazil, has been
followcd in the United States of Ameri~a.~
It
is in line with this
1
(1940)
12
M.L.R.
494;
(1952) 15
M.L.R.
220; (1966)
18
M.L.R.
184, 417;
(1957) 20
M.L.R.
273; (19.58) 21
M.L.R.
165; (1964) 26
M.L.R.
81.
2
119711
1
W.L.R.
604.
3
118921
A.C.
437.
4
ll924]
A.C.
707.
5
Sullivan
v.
State
of
Sao
Paolo,
122
P.
2d 355 (1941).
18
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