Torts in UK Foreign Relations: Response to Professors Mills, Ryngaert and Webb

I am grateful to Professors Alex Mills, Cedric Ryngaert and Philippa Webb for discussing various aspects of my book on Torts in UK Foreign Relations in their posts. Their comments raise important questions about the act of state doctrines, the application of foreign law to tort claims arising out of the external exercise of British executive authority and the position of the UK approach to such claims in comparative law. Foreign Act of State In her post, Professor Webb focuses on the foreign act of state doctrine (“FAOS”). She raises the question of whether private international law can help us understand the nature of the doctrine and play a role in taming the public policy exception to it. This question is partly motivated by the Canadian Supreme Court judgment in Nevsun Resources Ltd v Araya , where the court relied on private international law to hold that FAOS had played no role in Canadian law and was not part of Canadian common law. Regardless of the merits of this argument in the Canadian context, it clearly does not apply in the UK. The UK Supreme Court has confirmed the existence of FAOS in UK law on no fewer than three occasions since 2017 ( Belhaj v Straw ; “Maduro Board” of the Central Bank of Venezuela v “Guaidó Board” of the Central Bank of Venezuela ; Law Debenture Trust Corp plc v Ukraine ). Therefore, the question for UK law (as well as for the laws of Anglo-Commonwealth countries that still recognise FAOS as part of their law) is whether private international law can help clarify the nature of FAOS and map out the relationship between different jurisdictions and rules that are engaged when the doctrine operates. I share Professor Webb’s view that, upon examining the relevant caselaw, one […]

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By Donato