Banco de la Nacin Lima v Banco Cattolica del Veneto

CourtFederal Tribunal (Switzerland)
Switzerland, Federal Tribunal.
Banco de la Nacion Lima
Banco Cattolica del Veneto

State immunity State corporation Independent legal personality Whether entitled to State immunity Entitlement to immunity limited to acts performed jure imperii Whether property subject to attachment The law of Switzerland

Summary: The facts:Within the framework of a dispute concerning funds deposited by the Banca Cattolica del Veneto, an Italian bank, with the Banco de la Nacion, a State-owned Peruvian bank, the Italian bank obtained the attachment of funds held in the name of the Peruvian bank at several banks in Zurich. The Peruvian bank appealed against the attachment to the Federal Tribunal arguing that it violated the immunity to which it was entitled under international law.

Held:The appeal was dismissed.

Foreign State-owned corporations which, according to the law of their seat, were endowed with their own independent legal personality, could not in principle invoke State immunity. The only possible exception to this rule could be where such entities acted in the exercise of sovereign authority (jure imperii). In the case of a bank closely linked to a foreign State it would be inequitable to allow it to enter into competition with private banking institutions whilst at the same time granting it immunity to escape the consequences of those transactions.

The following is the text of the judgment of the Court:

A.The Banco de la Nacion and the Banca Cattolica del Veneto, which was linked to the Banco Ambrosiano Group of Mailand (Roberto Calvi), entered into commercial relations in 1979. The Banca Cattolica remitted large sums to the Banco de la Nacion on deposit for a fixed period, which were for the most part subsequently remitted by the latter Bank to companies in the Ambrosiano Group after the addition of interest at 1/4%.

In the summer of 1982 Italian authorities ordered the compulsory liquidation of Banco Ambrosiano. The Banco de la Nacion acknowledges that at this time deposits in an account of the Banca Cattolica totalled 32.5 million dollars. In respect of the majority of these sums the Banco de la Nacion contests its capacity to be sued (Passivlegitimation) on the ground that it only received these sums on trust and passed them on to companies in the Ambrosiano Group. In respect of those sums which it received as a debtor on its own account the Banco de la Nacion acknowledges that it retained some funds to cover the payment of claims for damages.

B.On 18...

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