Abstract
AbstractThe UK Supreme Court's decision in Belhaj v Straw defined foreign affairs non-justiciability and unearthed its constitutional foundations. However, two decisions since Belhaj—High Commissioner for Pakistan v Prince Muffakham Jah and The Law Debenture Trust Corpn plc v Ukraine—have called Belhaj into doubt, narrowing non-justiciability to give effect to ordinary private law rights. This article analyses these decisions and argues that their general approach of subjecting issues involving transactions between sovereign States to private international law's framework is desirable, because the constitutional foundations of non-justiciability identified in Belhaj are shaky. Yet, it is suggested that private international law itself may require courts to exercise judicial restraint on these issues, given its goal of upholding the efficient resolution of international disputes in appropriate fora.
Highlights
The common law has long accepted that certain issues involving transactions between sovereign States should be non-justiciable, even if they arise in civil proceedings.1 The precise boundaries of foreign affairs non-justiciability, remain ‘shot through with indeterminacy’.2 In 2017, the UK Supreme Court in Belhaj v Straw3 boldly sought to give shape to foreign affairs non-justiciability, collectively endorsing its existence and systematising its various limbs
Prince Muffakham Jah and Law Debenture have chipped away at Belhaj’s definition of foreign affairs justiciability: the former decision narrowed the category of non-justiciable inter-State transactions caught by foreign affairs non-justiciability, while the latter broadened the scope of the public policy exception
Prince Muffakham Jah and Law Debenture can hardly be faulted—it is difficult to adhere to the strict letter of Belhaj, when theoretical justifications for doing so are weak, and when strong private justice concerns pull in the opposite direction
Summary
The common law has long accepted that certain issues involving transactions between sovereign States should be non-justiciable, even if they arise in civil proceedings. The precise boundaries of foreign affairs non-justiciability, remain ‘shot through with indeterminacy’.2 In 2017, the UK Supreme Court in Belhaj v Straw boldly sought to give shape to foreign affairs non-justiciability, collectively endorsing its existence and systematising its various limbs. In two important decisions since—High Commissioner for Pakistan v Prince Muffakham Jah and The Law Debenture Trust Corpn plc v Ukraine6—the High Court and Court of Appeal respectively narrowed foreign affairs non-justiciability, beyond the substance of the majority judgment in Belhaj. This, as their reasoning suggests, is attributable to courts’ reluctance to obstruct ordinary rules of private law with what they see as a redundant rule. This article traces and analyses these decisions It argues that the general approach taken by these courts, turning to private international law for answers on inter-State transaction disputes, is defensible because Belhaj’s theoretical foundations based on the constitutional separation of powers are shaky. Remains appropriate for these inter-State disputes: private international law itself provides sound reasons for restraint, arising from values like efficiency in dispute resolution which underlie in the doctrine of forum non conveniens
Sign-in/Register to view highlights & summary Sign-in/Register to access full text options 
Free) 
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a call
