United States of America v Bracale Bicchierai
|18 Novembre 1968
|Court of Appeal of Naples (Italy)
Sovereign immunity Foreign States Lease of premises for Consular residence Action for cancellation of lease Whether foreign State entitled to jurisdictional immunity Acts iure imperii and iure gestionis The law of Italy
Summary: The facts:The plaintiff, an Italian subject, instituted proceedings against the United States Government for cancellation of the lease of premises in Naples used as his private residence by the United States Consul. The contract had been entered into by the Consul in the name of the Secretary of State. The United States Government claimed to be entitled to jurisdictional immunity. The Tribunal of Naples held that it had jurisdiction over the claim since in making the contract the United State Government had acted as a private individual and the lease in question was therefore an act iure gestionis. The United States Government appealed.
Held:The appellant was not entitled to jurisdictional immunity and the decision of the Tribunal of Naples on this point was upheld,
(1) The appellant, in drawing up the lease, had placed itself on an equal footing with the plaintiff and had taken part in a typical private law transaction.
(2) The specific use for which the leased premises were destined (as a consular residence) could not alter the fundamentally private nature of the contract.
The following is the relevant part of the judgment of the Court:
It is well known that the immunity of foreign States from civil jurisdiction has received various interpretations in legal writings. Two theoretical approaches exist to the question of immunity. On the one hand the theory of so-called absolute immunity (reflected in Anglo-American legal writings) accords complete immunity to foreign States from the jurisdiction of the receiving or host State; the other is the so-called theory of restricted immunity (reflected in Italo-Belgian scholarly writings) where a distinction is drawn between acts iure imperii and acts iure gestionis and only the former give foreign States the right to jurisdictional immunity. According to a more recent view foreign States and in general all subjects of international law do not enjoy immunity only in cases where a foreign State has performed an act iure imperii (nor, on the other hand, can immunity be denied to the foreign State merely because it has performed an act iure gestionis). According to this approach the question of immunity is...
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