Assuranceforeign Gard Gjensidig v. International Oil Pollution Compensation Fund
Full Case Title: Assuranceforeign Gard Gjensidig v. International Oil Pollution Compensation Fund, High Court of Justice Queen's Bench Division Commercial Court,[2014] EWHC 3369 (COMM), judgment of 17 October 2014
Reference Number: Case No 2014-318
Type of Document: Judicial decisions
International Organization: IOPC Fund
Year: 2014
Issuing Body: High Court
Country: United Kingdom
The 1971 International Oil Pollution Compensation Fund is an international organization – established under the International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage 1971 – which provides compensation for oil pollution damages caused by spills and the dispersion of oil from vessels.
In 1997, the vessel Nissos Amorgos grounded in the Maracaibo Channel (Venezuela), provoking oil dispersion in the sea. Venezuelan courts declared the vessel owner and the insurance company, the Guard, liable for the damages resulting from the incident, ordering the payment of compensation.The Guard acted against the Fund before the United Kingdom judicial authorities, claiming that the Fund was liable to indemnify it in respect of its liability to the Republic of Venezuela.
The Fund invoked its jurisdictional immunity from legal process in British courts, as provided under the Headquarters Agreement between the United Kingdom and the Fund and the International Oil Pollution Compensation Fund (Immunities and Privileges) Order 1979. In particular, Article 6, par 1, of the Order establishes:
Within the scope of its official activities the Fund shall have immunity from suit and legal process except:
a) to the extent that it shall have waived such immunity in a particular case; b) in respect of actions brought against the Fund in accordance with the provisions of the Convention; c) in respect of any contract for the supply of goods or services, and any loan or other transaction for the provision of finance and any guarantee or indemnity in respect of any such transaction or of any other financial obligation; d) in respect of a civil action by a third party for damage arising from an accident caused by a motor vehicle belonging to, or operated on behalf of, the Fund or in respect of a motor traffic offense involving such a vehicle; e) in respect of a civil action relating to death or personal injury caused by an act or omission in the United Kingdom; f) in the event of the attachment or, in Scotland, arrestment, pursuant to the order of a court of law, of the salaries, wages or other emoluments owed by the Fund to a staff member; g) in respect of the enforcement of an arbitration award made under Article 23 of the Agreement; and h) in respect of a counter-claim directly connected with proceedings initiated by the Fund.
The applicant argued that the instant case was a contract dispute, falling within the exception under Article 6, 1, c). Accordingly, the applicant and the Fund would have reached an arrangement on the indemnity payment through a series of meetings and written communications manifesting the Fund’s intention to release the indemnity.
The applicant also pointed out that the exception to immunity, stated in Article 6, 1, c), would cover the alleged agreement. Otherwise, the grant of immunity would be a disproportionate interference with the applicant’s right to access a court under Article 6 of the European Convention on Human Rights, since alternative fora do not exist to sue the Fund. The Fund objected that there was no agreement between the parties, claiming its immunity from the process. It also asserted that the activities giving rise to the applicant’s claim are acta jure imperii and not acta jure gestionis.
The Court firstly reminded that international organizations are different legal entities and their immunities and privileges rest on different legal regimes. In particular, it held that “States have long had a right to immunity, an immunity now governed by the 1978 Act. Organisations such as the Fund have no such historic right and only have immunity if and to the extent it is granted by statute. There is no room for the application of the doctrine of acta jure imperii in the case of the Fund since, as it is not a state, no action on the part of the Fund falls within this description“.
Therefore, to determine whether the Fund was immune from the claims brought against it, the Court exclusively relied on the Headquarters Agreement and the 1979 Order.
As clarified by the Court, the Order shall be interpreted according to its terms and in light of its legislative purpose. The Court observed that the Order was adopted to give effect at the domestic level to the Headquarters Agreement provisions whose primary objective is to enable the Fund to perform its functions. It also stressed the application of the Order in the instant case does not give rise to an illegal infringement of the right of access to justice.
In the instant case, the Court held that the facts in dispute related to institutional activities on the Fund covered by the immunity provided under Article 6, 1, of the Order. According to the Court, the applicant has not sufficiently demonstrated the existence of a contract agreement within the meaning of Article 6, 1, c. Therefore, it declared to have no jurisdiction over the claims against the Fund, dismissing the application.