The “Maduro Board” of the Central Bank of Venezuela v The “Guaidó Board” of the Central Bank of Venezuela
| Jurisdiction | England & Wales |
| Judge | Lord Lloyd-Jones,Lord Reed,Lord Hodge,Lord Hamblen,Lord Leggatt |
| Judgment Date | 20 December 2021 |
| Neutral Citation | [2021] UKSC 57 |
| Court | Supreme Court |
[2021] UKSC 57
Lord Reed, President
Lord Hodge, Deputy President
Lord Lloyd-Jones
Lord Hamblen
Lord Leggatt
Guaidó Board
Timothy Otty QC
Sir Daniel Bethlehem QC
Andrew Fulton QC
Mark Tushingham
(Instructed by Arnold & Porter Kaye Scholer LLP)
Maduro Board
Sir Jeffrey Jowell QC
Nicholas Vineall QC
Professor Dan Sarooshi QC
Brian Dye
Jonathan Miller
Naina Patel
Mubarak Waseem
(Instructed by Zaiwalla & Co Ltd)
Intervener (Secretary of State for Foreign, Commonwealth and Development Affairs)
Sir James Eadie QC
Sir Michael Wood
Jason Pobjoy
Belinda McRae
(Instructed by The Government Legal Department)
Heard on 19, 20 and 21 July 2021
| Paragraphs | |
| Introduction | 1–58 |
| Factual background | 6–38 |
| The proceedings | 39–58 |
| Recognition | 59–110 |
| The submissions of the parties | 59–62 |
| Recognition of states and governments in international law | 63 |
| FCDO practice in recognition | 64–68 |
| Recognition and the courts | 69–79 |
| Express and implied recognition | 80–82 |
| De jure and de facto recognition | 83–86 |
| Application of the principles to this case | 87–101 |
| Subsequent events | 102–105 |
| Head of government | 106–109 |
| Conclusion on recognition | 110 |
| Act of State | 111–180 |
| The issues raised | 114–115 |
| Rule 2: An act of a foreign state's executive | 116–170 |
| Limitations and exceptions | 136 |
| Appointments as acts of state | 137–146 |
| Territoriality | 147–150 |
| Incidental issue | 151–152 |
| The judgments of the STJ | 153–170 |
| Rule 1: A foreign state's legislation or other laws | 171–180 |
| Conclusion | 181 |
( with whom Lord Reed, Lord Hodge, Lord Hamblen and Lord Leggatt agree)
This appeal raises fundamental issues concerning the recognition of a foreign head of state, the foreign act of state doctrine and their inter-relationship.
The central question arising on this appeal is which of two contending claimants is entitled to give instructions to financial institutions within this jurisdiction on behalf of the Central Bank of Venezuela (the “BCV”) and to represent the BCV in a London Court of International Arbitration (“LCIA”) arbitration. The Bank of England (the “BoE”) holds gold reserves of about US$1.95 billion for the BCV, while Deutsche Bank (“DB”) has paid the proceeds of a gold swap contract owed to the BCV in the sum of about US$120m to court-appointed receivers (the “Receivers”) to hold on behalf of the BCV. The two competing claimants to the funds held by the BoE and the Receivers have been referred to in these proceedings as the “Maduro Board” and the “Guaidó Board”. They each claim to be entitled to represent the BCV in relation to the assets of the BCV in this jurisdiction.
The Maduro Board claims to be the only validly appointed board of the BCV, appointed by Mr Nicolás Maduro Moros (“Mr Maduro”) as President of Venezuela, and, as such, authorised to give instructions on behalf of the BCV in respect of BCV assets held within Venezuela and also, for present purposes, in respect of BCV assets held in financial institutions in England. The Guaidó Board claims to be an ad hoc board of the BCV, appointed by Mr Juan Gerardo Guaidó Márquez (“Mr Guaidó”) as interim President of Venezuela, and authorised to give instructions on behalf of the BCV, including in respect of BCV assets held in financial institutions in England. The Maduro Board denies the Guaidó Board has the authority it claims to have. The Maduro Board has challenged Mr Guaidó's right to appoint the Guaidó Board and a Special Attorney General. The Maduro Board contends that Mr Guaidó's acts of appointment are null and void under Venezuelan law, and notes that they have been held to be null and void by the Venezuelan courts.
The dispute as to who is entitled to give instructions on behalf of the BCV concerning the assets held in England involves two issues:
(1) Whether Mr Guaidó or Mr Maduro is recognised as the President of Venezuela; and
(2) If the answer is that Mr Guaidó is the President and Mr Maduro is not, the validity of Mr Guaidó's appointment of the Guaidó Board and of the Special Attorney General.
The parties identified a large number of issues arising from the pleadings. On the Guaidó Board's application, and against the Maduro Board's objections, the Commercial Court ordered a trial of two preliminary issues which were addressed by the courts below:
(1) The “recognition issue” namely:
Does Her Majesty's Government (“HMG”) (formally) recognise Juan Guaidó or Nicolás Maduro and, if so, in what capacity, on what basis and from when? In that regard:
(i) Has Her Majesty's Government formally recognised Mr Guaidó as interim President of Venezuela by virtue of the Foreign and Commonwealth Office (FCO) letter dated 19 March 2020 to the Court and/or the public statements made by Her Majesty's Government?
(ii) If so, is that recognition as both head of state and head of government? and
(iii) Is any such recognition conclusive pursuant to the “one voice” doctrine for the purpose of determining the issues in these proceedings?
(2) The “act of state issue” namely:
Can this Court consider the validity and/or constitutionality under Venezuelan law of (a) the Transition Statute; (b) Decrees Nos 8 and 10 issued by Mr Guaidó; (c) the appointment of Mr Hernández as Special Attorney General; (d) the appointment of the Ad Hoc Administrative Board of BCV; and/or (e) the National Assembly's Resolution dated 19 May 2020, or must it regard those acts as being valid and effective without inquiry? In that regard:
(i) Does the “one voice” doctrine preclude inquiry into the validity of such matters?
(ii) Are such matters foreign acts of state and/or non-justiciable?
(iii) Does the Court lack jurisdiction and/or should it decline as a matter of judicial abstention to determine such issues?
In April 2013, Mr Maduro was elected President of Venezuela.
In December 2015, there were elections for Venezuela's legislature, the National Assembly. A dispute arose as to the validity of the election of four deputies for the State of Amazonas. The Supreme Tribunal of Justice of Venezuela (the “STJ”), the highest Venezuelan constitutional court, granted provisional relief suspending the implementation of the election of these deputies. However, the opposition coalition, which claimed victory in the elections, decided that the four deputies should be sworn in anyway.
There is a dispute between the Guaidó Board and the Maduro Board in relation to all of the judgments of the STJ upon which the Maduro Board relies from 2016 onwards. The Guaidó Board's pleaded case is that the STJ's judgments were issued in violation of principles of due process and that the members of the STJ are not impartial and independent but were acting corruptly to support Mr Maduro.
On 1 August 2016, the STJ issued a judgment in which it declared that all decisions taken by the National Assembly would be null and void for so long as it was constituted in breach of the judgments and orders of the STJ. Subsequently, other judgments were issued to the same or similar effect.
In May 2017, a National Constituent Assembly was established on Mr Maduro's initiative and an election was held for its members. This was essentially a rival legislature to the National Assembly.
In May 2018, a Presidential election took place which Mr Maduro claims to have won. The United Kingdom considered that this election was deeply flawed.
On 19 June 2018, Mr Maduro appointed Mr Ortega as President of the BCV. On 26 June 2018, the National Assembly passed a resolution declaring Mr Ortega's appointment to be unconstitutional. The STJ in turn has declared the National Assembly Resolution unconstitutional.
On 10 January 2019, Mr Maduro was sworn in before the STJ for a second term as the President of Venezuela.
However, on 15 January 2019, the National Assembly and the President of the National Assembly, Mr Guaidó, announced, relying upon article 233 of the Venezuelan Constitution, that Mr Maduro had usurped the office of President and that Mr Guaidó was the interim President of Venezuela by virtue of his position as President of the National Assembly.
On 26 January 2019, the United Kingdom joined European Union partners in giving Mr Maduro eight days to call fresh elections, in the absence of which those countries would recognise Mr Guaidó as interim President “in charge of the transition back to democracy”. Mr Maduro did not call such elections.
On 4 February 2019, the then Foreign Secretary, the Rt Hon Jeremy Hunt MP, issued the following statement:
“The United Kingdom now recognises Juan Guaidó as the constitutional interim President of Venezuela, until credible presidential elections can be held.
The people of Venezuela have suffered enough. It is time for a new start, with free and fair elections in accordance with international democratic standards.
The oppression of the illegitimate, kleptocratic Maduro regime must end. Those who continue to violate the human rights of ordinary Venezuelans under an illegitimate regime will be called to account. The Venezuelan people deserve a better future.”
This was followed by an exchange of letters between Tom Tugendhat MP, Chair of the House of Commons Select Committee on Foreign Affairs and Sir Alan Duncan MP, Minister of State for Europe and the Americas, which has been made public. Mr Tugendhat asked for an explanation of the legal basis for this act of recognition.
On 25 February 2019, Sir Alan explained that the decision to...
To continue reading
Request your trial
-
Koza Ltd v Koza Altin Isletmeleri as
...the Supreme Court in Deutsche Bank AG London Branch v Receivers; Central Bank of Venezuela v Governor and Company of the Bank of England [2021] UKSC 57; [2022] 2 WLR 167 (to which I will refer as “the BCV 58 At [157] to [159] Lord Lloyd-Jones JSC stated the relevant principle: “157. Altho......
-
Crane Bank Ltd v DFCU Bank Ltd
...recognised by the Supreme Court in “Maduro Board” of the Central Bank of Venezuela v “Guaidó Board” of the Central Bank of Venezuela [2023] AC 156. Lord Lloyd-Jones JSC, with whom all the other Justices agreed, explained at [135]: “The rule…has a sound basis in principle. It is founded on t......
-
Ukraine (Represented by the Minister of Finance of Ukraine acting upon the instructions of the Cabinet of Ministers of Ukraine) v The Law Debenture Trust Corporation P.L.C.
...(at paras 136–143), but those matters have since been clarified in Deutsche Bank AG London Branch v Receivers Appointed by the Court [2021] UKSC 57; [2023] AC 156 (“ Maduro v Guaidó”), para 135. (3) “The third rule has more than one component, but each component involves issues which are ......
-
Kuwait Investment Office v Hard
...417, EATCentral Bank of Venezuela v Governor and Company of the Bank of England [2020] EWCA Civ 1249; [2021] QB 455; [2021] 2 WLR 1, CA; [2021] UKSC 57; [2022] 2 WLR 167; [2022] 2 All ER 703, SC(E)Chandhok v Tirkey [2015] ICR 527, EATDuff Development Co Ltd v Government of Kelantan [1924] A......
-
COURT OF APPEAL SUMMARIES (October 23 – October 27)
...(2001), 54 O.R. (3d) 215 (C.A.), Maduro Board” of the Central Bank of Venezuela v. “Guaido Board” of the Central Bank of Venezuela, [2021] UKSC 57, Daly v. Ontario Secondary School Teachers’ Federation (1999), 124 O.A.C. 152 (Ont. C.A.) Obolus Ltd. v. International Seniors Community Care In......
-
High Court Dismisses Quincecare Duty Claim Giving Guidance On The Scope And Nature Of The Duty
...this case. The court noted that, as per "Maduro Board" of the Central Bank of Venezuela v "Guaidó Board" of the Central Bank of Venezuela [2021] UKSC 57, there is a rule that courts in this jurisdiction will not adjudicate or sit in judgment on the lawfulness or validity of an executive act......
-
UK Supreme Court Finds Guaidó Is to Be Recognised as Venezuela’s Head of State in Gold Dispute
...or head of government not recognised by the UK government. These and other questions may need to be addressed in due course. Endnotes [1] [2021] UKSC 57. [2] [1993] 1 QB 54 [3] [2021] UKSC 57 at para. 98. [4] [2017] UKSC 3. [5] [2017] UKSC 3 at paras. 121-124. [6] [2021] UKSC 57 at para.and......