The Weekly Roundup: The State Authority Edition

• Published date: 02 March 2022
• Subject Matter: Corporate/Commercial Law, Government, Public Sector, Corporate and Company Law, Government Contracts, Procurement & PPP
• Law Firm: 1 Chancery Lane
• Author: Mr Tom Collins and Thomas Yarrow

This week the discussions around the 1CL dining table have turned to issues of recognition of State authority; whence do governments derive their right to govern, and what do they do with those rights once they have them? We refer, of course, to the doctrine of acta iure imperii, as our readers will no doubt already have appreciated. And sometimes state actors get things wrong; when they do, it becomes necessary for them to reflect on their choices and try to put them right. Just such a process is occurring within the EC as we speak; yes, the consultation on the 2015 Package Travel Directive is under way, and once again the team is crystal ball gazing. A brave endeavour in these unpredictable times.

Acta iure imperii and applicable law

Before the Rome Regulations were adopted in the UK by automatic operation of EU law, the instrument governing the way in which the courts handled conflicts of laws issues was the Private International Law (Miscellaneous Provisions) Act 1995. The old regime is preserved for a few categories of cases which fall outside the scope of the Rome Regulations. One such cohort is of cases concerning the tortious liability of the State for acts and omissions in the exercise of State authority (acta iure imperii).

This could be a relevant consideration for practitioners involved in cases involving diplomats or consular staff around the globe, soldiers, police officers in special overseas jurisdictions, border officials stationed at foreign ports, or official delegations at summits, who have come to harm.

The case of Rai v Ministry of Defence (unreported), 9 May 2016, (Middlesbrough District Registry) provides a useful discussion of the legal principles relating to acta iure imperii and the application of Rome II or the 1995 Act. In that case, the claimant was injured when a horse kicked him in the head as he was attempting to clean its hoof whilst in Alberta, Canada, in the course of his duties as a Ghurkha soldier in the British Army. The claimant brought proceedings against the Ministry of Defence as his employer (or quasi-employer) and contended that the matter was civil and commercial and within scope of Rome II; the defendant argued that the alleged negligence arose from acta iure imperii.

HHJ Mark Gargan sitting as a deputy High Court Judge in that case determined that on the facts, it was a civil matter which fell within scope of Rome II and not an exercise of state power. The Judge said it was not enough that the purpose or motive of the relevant act is to serve the purposes of the State - for example to train a soldier - it is necessary that the act has the character of a governmental act as opposed to an act which a private citizen can perform, for only then is the state acting in the exercise of its public/sovereign powers rather than in its private capacity.

What is the difference between the two regimes when it comes to determining the substantive law of the proceedings? In many cases it will not make any difference other than to the pleadings which instrument applies. Like Article 4 of Rome II, the 1995 Act contains a 'general rule' - the lex causae will be the law of the country in which the...