China grants immunity to foreign nations in Hong Kong courts

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[JURIST] China’s National People’s Congress (NPC) [official website] on Friday adopted an interpretation of certain articles of the Basic Law [text] of the Hong Kong Special Administrative Region [official website], removing lawsuits against sovereign nations from the jurisdiction of Hong Kong courts. The Standing Committee [official website] of the NPC adopted an interpretation that “stipulates that Hong’s Kong’s laws concerning rules on state immunity must be ‘consistent with the rules or policies on state immunity that the central government has adopted.'” Unlike much of the world’s nations, China recognizes absolute sovereign immunity [Xinhua report] in its courts, even in cases purely involved with business dealings. The official interpretation passed on the last day of the three-day bi-monthly session of the NPC Standing Committee, and was derived from a 2008 lawsuit filed in a Hong Kong high court. US-registered FG Hemisphere Associates LLC had named the Democratic Republic of the Congo as a defendant in its legal proceedings in the court, and the country claimed that Hong Kong courts do not have jurisdiction over Congo as a sovereign nation. In June 2011, the Hong Kong Court of Final Appeals [official website] made a provisional judgment, stating that Hong Kong should follow the rules on state immunity that the central government has adopted, granting Congo its claimed immunity from jurisdiction. However, because the central government has the final say on Hong Kong issues relating to foreign affairs, the Court of Final Appeals believed it needed to seek an interpretation from the legislature [WP report] before issuing its final judgment. The NPC Standing Committee Legislative Affairs Commission largely adopted the court’s ruling, and the court will now make its final judgment on the basis of its decision.

FG Hemisphere Associates has sued Congo and certain corporations in courts in several nations around the world. The company is attempting to recover over $100 million owed for a series of power stations built in the 1980s. The US does not recognize sovereign immunity for foreign nations in all cases involving business transactions. In March, the US Court of Appeals for the District of Columbia Circuit ruled [opinion, PDF] on Congo’s appeal from a district court decision in FG Hemisphere Associates’ favor, which the appellate court affirmed. US courts often deny sovereign immunity. In February, a federal judge ruled that former Somali prime minister and defense minister Mohamed Ali Samantar was not entitled to immunity from civil lawsuits [JURIST report]. Samantar, who had lived in the greater Washington, DC, area for more than 15 years, was sued in 2004 by two Somali men who alleged he spearheaded a campaign of ethnic repression against the northern Somali Isaaq clan during his tenure in office. Immunity was also denied in a clergy abuse case against the Vatican [JURIST report] in January.

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