Swissair v X

CourtFederal Tribunal (Switzerland)
Switzerland, Federal Tribunal.
X and Another

State immunity State corporation Independent legal personality Whether entitled to State immunity Whether immunity can be invoked by third party acting on behalf of foreign State corporation Whether property subject to attachment The law of Switzerland

Summary: The facts:X, a Swiss company which was a creditor of an Algerian company, obtained the attachment of funds held by Swissair and owed to the Algerian company. Swissair lodged a public law appeal against the attachment before the Federal Tribunal, seeking to rely on the immunity to which the Algerian company was allegedly entitled because of its close links with the Algerian State.

Held:The appeal was dismissed.

A foreign State, or even an entity of such a State endowed with its own independent legal personality, could invoke immunity for an act performed jure imperii, in order to exempt itself from the jurisdiction or enforcement procedures of the Swiss courts. But a Swiss party could not seek to rely on such immunity where it acted in some way on behalf of a foreign State or entity.

The following is a statement of the facts as reported in Annuaire Suisse de droit international, 1986, p. 68:

A Swiss company, which was a creditor of an Algerian company, sought and obtained the attachment, in the hands of Swissair, of debts owed to the Algerian company by Swissair. Swissair lodged a public law appeal in which it requested the annulment of the attachment, invoking the immunity of the Algerian enterprise, which was closely linked to the Algerian State, and the inadequacy of the link between the enforcement proceedings and Swiss territory

The following is the text of the relevant part of the grounds of the judgment of the Court:

According to a universal rule of public international law, the sovereignty of each State is limited by the immunity of other States, in particular with regard to jurisdiction and enforcement. One State cannot be summonsed before the courts and authorities of another State for activities relating to the exercise of sovereign authority (acts jure imperii), by virtue of the principle par in parem non habet jurisdictionem (ATF 106 Ia 1471). It is not excluded that immunity may also be invoked by entities of public or private law which, although endowed with a distinct legal personality, have close links with the State (ATF 104 Ia 373, ground 32 with references). Where a foreign State acts as the holder of private rights (...

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