Republic of Ghana
| Court | Superior Court (Switzerland) |
| Date | 27 mars 1973 |
Sovereign immunity Foreign States Order for security for costs against foreign State Whether Foreign State entitled to immunity Whether such order a measure of execution Immunity from execution Whether sovereign nature of act or claim relevant The law of Switzerland
Summary: The facts:The Republic of Ghana appealed against an order for security for costs made against it in proceedings at first instance. It asserted that such an order constituted a measure of execution and that it was entitled to assert immunity from execution.
Held:The order for security for costs was upheld.
An order for security for costs was not a measure of execution entitling a foreign State against which it was directed to plead immunity from execution. In the absence of express agreement by international convention there was an obligation on a foreign State invoked in proceedings in Switzerland to give security for costs. The imposition of a requirement to give such security was simply a precondition for the institution of proceedings and did not involve the exertion of constraint against a foreign State prohibited by international law. It was immaterial in this regard whether the act giving rise to the proceedings had been performed iure imperii or iure gestionis.
The following is the text of the relevant part of the grounds of the judgment of the Court:
It is clearly established, subject to proof being adduced of exemption under an international treaty as required by the single judge, that the conditions for the application of Article 59 (1) of the Code of Civil Procedure (ZPO) are met. The defendant nevertheless asserts, in summary, that orders for security for costs under Article 59 of the Code of Civil Procedure (ZPO) are means of security for enforcement and that in accordance with the principles of public international law measures of execution cannot be taken against foreign States. The defendant argues that this is the case regardless of the question as to whether the foreign State is acting in exercise of State power (iure imperii) or as some other kind of participant in legal transactions (iure gestionis) since this distinction is only of relevance to the question of jurisdiction but not to that of execution. In addition the defendant argues that it is acting here in exercise of State power.
3. These arguments of the defendant proceed on the assumption that an order for security for costs...
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