R v Republic of Iraq

CourtFederal Tribunal (Switzerland)
Switzerland, (Federal Tribunal).
Republic of Iraq

State immunity Jurisdictional immunity Employment dispute Locally recruited interpreter/translator employed by mission of foreign State Claim for salary arrears Whether foreign State entitled to jurisdictional immunity Whether employee performing merely subordinate functions The law of Switzerland

Summary: The facts:R, a Moroccan national, was employed from 1990 to 1992 as an interpreter/translator by the Permanent Mission of Iraq to the United Nations in Geneva. His work consisted of the translation of documents and correspondence, the drafting of letters and acting as an interpreter at meetings. Following the termination of his employment, he sued his employer for salary arrears before the Labour Court of Geneva. Iraq entered a plea of jurisdictional immunity which was upheld by the Geneva courts. R then appealed to the Federal Tribunal seeking a ruling that the labour courts were competent to exercise jurisdiction over the dispute.

Held:The plea of immunity was unfounded and the case was remitted to the competent labour court for consideration on the merits.

(1) The Swiss courts had shown a tendency to restrict the scope of jurisdictional immunity of foreign States and to weigh up the interests of foreign States in benefiting from immunity against the interest of the forum State in exercising jurisdictional sovereignty and the interest of the plaintiff in obtaining judicial protection of his rights. In relation to employment contracts, while it was accepted that the sending State could have a special interest in preventing disputes with a member of its embassy staff performing superior functions being brought before foreign courts, the same did not apply to disputes involving subordinate employees. In any case, where the employee was not a national of the sending State and was locally recruited, the jurisdiction of the forum State could normally be recognized since the sending State was not affected in the exercise of its sovereign functions.

(2) In order to decide whether the work performed by a person employed by the sending State involved sovereign functions, the designation of the employment was not decisive. The same tasks might be categorized in different cases as either the performance of sovereign functions or subordinate employment. The activity of a translator/interpreter did not automatically place that person in either category. In fact, such employment constituted a borderline case. Nevertheless, a translator/interpreter did not normally participate in policy formation but was rather responsible for rendering as faithfully as possible the meaning of what he read or heard. While his activities were certainly of a confidential nature, this was not a decisive element since many other persons employed by the sending State would be required to perform confidential tasks and...

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