Originally from Dispute Resolution Journal

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RECENT DECISIONS BY NATIONAL COURTS

France. In a decision dated May 13, 2015 the French Supreme Court
(Cour de cassation) made an important ruling on the requirements for
a waiver of sovereign immunity. The decision is Commisimpex v.
Republic of the Congo, May 13 2015, 13-17751, reversing a 2012
decision of the Court of Appeal of Versailles and remanding the case
to the Paris Court of Appeal.

Background

In the 1980’s Commisimpex (i.e., Commissions Import Export,
S.A.) entered into contracts with the Republic of the Congo to
perform public works and supply materials. In 1992 the parties signed
an agreement for the extended repayment of certain outstanding debts
owed to Commisimpex under the contracts. The agreement contained
an arbitration clause providing for arbitration under rules of the
International Chamber of Commerce (ICC). The Republic of the
Congo arranged for promissory notes to be issued in favor of
Commisimpex and in 1993 issued a series of commitment letters;
each commitment letter contained an irrevocable waiver of “all
immunity from jurisdiction as well as all immunity from enforcement
in the context of the settlement of a dispute relating to the
undertakings which are the subject of such letter” (“à invoquer dans
le cadre du règlement d’un litige en relation avec les engagements
objets de la présente, toute immunité de juridiction ainsi que toute
immunité d’exécution.”).

When the Congo failed to pay the promised amounts as they
became due and did not respond to a formal demand for payment,
Commisimpex initiated ICC arbitration. In December 2000 the
arbitral tribunal awarded Commisimpex damages, which it has been
trying to recover in various jurisdictions ever since.

In October 2011 Commisimpex sought enforcement of the ICC
award from 2000 and obtained the attachment of a number of bank
accounts held in the name of the Congo’s diplomatic mission as well
as its delegation to UNESCO in Paris. However, the first-instance
court lifted the attachments, and on November 15, 2012 the Versailles
Court of Appeal affirmed the ruling. The Versailles Court of Appeal
held that under customary international law, diplomatic missions of
foreign states enjoy an autonomous immunity from enforcement and
the only way to waive this separate, autonomous, immunity is to
expressly and specifically provide that the waiver is effective against
assets protected by diplomatic immunity. The Versailles Court of
Appeal therefore concluded that the Congo’s waiver of immunity from
enforcement could not be regarded as relating to the diplomatic assets
and failed to meet the requirements of an express and specific waiver.

Commisimpex appealed this decision to the French Supreme Court.