State Immunity

Hong Kong

As the case of a US vulture fund against the Democratic Republic of the Congo reached the Hong Kong Court of Final Appeal, the disputed debt of US$104 million was overshadowed by the claim made in letters from the Foreign Ministry to Hong Kong courts that "China considers the issue of state immunity an important issue which affects relations between states" and that Hong Kong's embrace of the restrictive immunity doctrine would prejudice China's sovereignty. Some commentators also made alarmist remarks such as "no central government can survive if one of its components is singing a different tune", as if there were death penalty for a state if its regions breach international law. The Hong Kong Government, intervening in the case, argued that the issue of state immunity is part of Hong Kong's foreign affairs on which Hong Kong courts must follow Beijing's approach and maintain "one state, one immunity". The Government and the defendants in the case agreed that Hong Kong courts should not follow English common law on restrictive immunity which they said had been displaced by the Basic Law, and called for the court to ask for an interpretation from the national legislature on Article 13 of the Basic Law dealing with Hong Kong's foreign affairs. Lawyers for the plaintiff argued against the court seeking the interpretation, suggesting that Beijing could decide on Hong Kong's state immunity law by enacting a national law that applies to Hong Kong. They claimed that Hong Kong's return to the "legal dark ages" of absolute immunity would damage Hong Kong's reputation as an international financial centre.