The issue of sovereign immunity from enforcement is highly sensitive. It is regarded as a vital component of state sovereignty and as necessary to preserve peaceful relationships between states, and should be recognised as a matter of international comity. However, the interests of international commerce and private parties cannot be denied. For the sake of the rule of law, valid judicial and arbitral decisions rendered against states must be enforceable and any immunity cannot be absolute, especially in light of the growing involvement of states as economic operators. The scope and conditions under which sovereign immunities apply must therefore strike a careful balance between these legitimate interests.

In this respect, the first semester of 2015 saw a number of important court decisions that have attracted public attention.

In a ruling of February 5 2015 the European Court of Human Rights (ECHR) rendered a long-awaited ruling in NML Capital Ltd v France.(1) The court declared NML Capital's claim against France inadmissible since NML Capital had not exhausted all available domestic recourses in France. The court observed that French law authorises a creditor to seek compensation from the French state before the administrative courts when the application of a foreign state's immunity from enforcement has caused the creditor "serious and special damage".(2) On March 27 2012 NML Capital, a Cayman Islands-based fund, had filed a complaint against France before the ECHR after the French Supreme Court confirmed an appellate decision ordering it to lift the attachment it had performed on Argentinian diplomatic assets located in France.(3)

More recently, in June 2015, after having been awarded around $50 billion by an arbitral tribunal sitting under the auspices of the Hague Permanent Court of Arbitration,(4) Yukos's shareholders attempted to attach Russian assets in France and Belgium, including the assets of its diplomatic representations.(5)

In Commisimpex v Republic of the Congo the French Supreme Court issued another key decision, focusing on diplomatic assets.(6) This update examines that decision.


Between 1984 and 1987 Congolese company Commissions Import Export SA (Commisimpex) concluded several public works contracts with the Republic of the Congo (RC).

In 1993 the parties signed a repayment agreement which provided that the RC could pay its debt under the contracts in several instalments. The agreement contained an arbitration clause and, in a letter of undertaking, the RC gave a written promise that it would not "invoke any immunity from jurisdiction and from enforcement in the context of the settlement of the dispute concerning the commitments herein". On December 3 2000, after a dispute had arisen, a first arbitral award rendered under the aegis of the International Chamber of Commerce (ICC) ordered the RC to pay its arrears, which amounted to €39 million plus interest.

In 2003 the parties executed a new agreement on the payment of the RC's debts, which also contained an arbitration clause. Following the RC's failure to pay its debts as laid out in the terms of the agreement, in April 2009 Commisimpex commenced arbitration proceedings in Paris under the aegis of the ICC. The arbitral tribunal rendered an award of €222,749,598 (plus capitalised interest of 10% per year from December 31 2003).

In October 2011 Commisimpex sought enforcement of the ICC award rendered in 2000 and attached bank accounts held at Société Générale under the name of the Congolese diplomatic mission and the country's delegation to the United Nations Educational, Scientific and Cultural Organisation (UNESCO) in Paris.

However, the first-instance court lifted the attachments, and on November 15 2012 the Versailles Court of Appeal affirmed its judgment.(7) The court held that, under customary international law, the diplomatic missions of foreign states enjoy an autonomous immunity from enforcement and the only way to waive this is to state expressly and specifically that the waiver is effective against assets protected by diplomatic immunity. It further decided that funds belonging to diplomatic missions are subject to a presumption of public use, such that it is incumbent upon the creditor to prove that the assets are instead being used for a private or commercial purpose. The Versailles Court of Appeal therefore concluded that the general waiver of immunity from enforcement contained in the RC's letter of undertaking could not be regarded as relating to specific assets and thus failed to meet the requirements of a valid – express and specific – waiver.

Commisimpex lodged an appeal before the Supreme Court. Its main arguments were that:

  • customary international law does not provide that diplomatic missions of foreign states enjoy immunity from enforcement independent from that of their state; and
  • there was no legal basis for the appeal court's finding that the diplomatic missions of foreign states have independent immunity from enforcement, which can be waived only in an express and specific manner.


The Supreme Court reversed the Versailles Court of Appeal's decision and remanded the case to the Paris Court of Appeal. The Supreme Court held that in judging that diplomatic missions enjoy an independent immunity requiring a specific waiver, the Versailles Court of Appeal had violated customary international law, which requires only that such waiver be made expressly to be effective.


This decision dramatically departs from the consistent line of case law to date and reverses the landmark precedent set in Compagnie Noga d'importation et d'exportation v Embassy of the Russian Federation, as well as subsequent decisions.

In Noga, although the Supreme Court had decided a few weeks before that an arbitration agreement referring to the ICC Rules constituted a valid waiver of sovereign immunity from enforcement,(8) the Paris Court of Appeal held that when diplomatic assets are at stake, the waiver of enforcement immunity must state specifically that it covers these assets.(9)

The rationale of the Noga precedent flowed from the principle of state sovereignty and was founded on a textual interpretation of the 1961 Vienna Convention on Diplomatic Relations.(10)

Noga concerned loan agreements entered into in the early 1990s between the Russian Federation and Compagnie Noga d'importation et d'exportation, a Swiss-incorporated company. Russia expressly waived its sovereign immunity from enforcement in relation to disputes arising out of these agreements. A dispute arose and Noga commenced arbitration proceedings under the rules of the Arbitration Institute of the Stockholm Chamber of Commerce. Two awards were rendered in 1997, granting Noga around $23 million and $27 million (without interest and costs), respectively. In May 2000 Noga sought enforcement of these awards and attached, among other things, bank accounts held at BCEN-Eurobank in the name of the Russian Embassy and Russia's diplomatic mission and delegation to UNESCO in Paris. The first-instance court refused to lift the attachments and Russia appealed this decision.

The Paris Court of Appeal first observed that the guarantees provided by the Vienna Convention apply not only to diplomatic agents, but also to states themselves.(11) Based on Article 25 of the convention,(12) the court further considered that the convention protects an embassy's bank accounts and the assets of a diplomatic mission and a delegation to UNESCO.(13) The court then declared that the diplomatic function "is an essential attribute of State sovereignty, which is traditionally acknowledged by the community of nations", and that a general waiver of immunity from enforcement was insufficient to express the state's consent that its creditor hinder the functioning of its embassies and diplomatic missions abroad.

The court held that a state can renounce its diplomatic immunity from enforcement only by a waiver specifically addressing such situation, and decided that Russia's general waiver could not amount to a waiver of diplomatic immunity.

With the Noga precedent the Paris Court of Appeal coined a new principle: diplomatic immunity is genuinely independent from general state immunity from enforcement. Even where a state has waived its immunity from enforcement, diplomatic immunity still applies unless the state has expressly provided otherwise.(14)

Following Noga, three main categories of state asset could be identified, for the purposes of enforcement:

  • state assets not covered by any immunity from enforcement;(15)
  • state assets falling under the state's general immunity from enforcement, which may be given up by a general waiver; and
  • state assets covered by a distinct diplomatic immunity from enforcement.

One year later, on September 26 2001, the Paris Court of Appeal followed this trend and confirmed that a state's diplomatic assets are protected under Article 25 of the Vienna Convention. It upheld the distinction between a general waiver of enforcement and one that specifically mentions diplomatic assets.(16)

On September 28 2011 the Supreme Court bolstered the Paris Court of Appeal's position, firmly enshrining this principle. It expressly declared that the diplomatic missions of foreign states enjoy autonomous immunity from enforcement, which can be waived only in an express and specific manner.(17) The court further decided that this immunity covers funds deposited in the diplomatic mission's bank accounts, and that such funds are presumed to be allocated to the accomplishment of the state's diplomatic missions; therefore, the creditor seeking enforcement bears the burden of proving that they are instead related to a private or commercial activity. Notably, the Supreme Court did not base its ruling on Article 25 of the Vienna Convention, but instead on customary international law.

But it was also on the basis of customary international law that the Supreme Court held on May 13 2015 in Commisimpex that a waiver need not be specific to be effective, even though the assets of the diplomatic mission of a state were at stake. While it is questionable that customary international law has undergone so dramatic a change in just four years, this landmark Supreme Court decision portends a crucial evolution in the court's attitude towards diplomatic immunity.

Previously, the Paris Court of Appeal had affirmed that the diplomatic function "is an essential attribute of State sovereignty, which is traditionally acknowledged by the community of nations"; this implied that diplomatic assets should be afforded particular protection and the appeal court found this shield in treaty-based international law (the Vienna Convention). By contrast, the Supreme Court now considers that the assets of states' diplomatic missions are not covered by any autonomous and insulating immunity. It has abandoned any reference to the law of diplomatic relations and found this solution in customary international law.

Despite these assets' particular function, the court denied diplomatic assets specific protection against a general and express waiver of immunity from enforcement. Fracturing the diplomatic shield, the court has greatly eased the road to the execution of decisions rendered against sovereign entities.

For further information on this topic please contact Elie Kleiman or Yann Dehaudt-Delville at Freshfields Bruckhaus Deringer by telephone (+33 1 44 56 44 56) or email ([email protected] or [email protected]).The Freshfields Bruckhaus Deringer LLP website can be accessed at


(1) ECHR, Sect 5, February 5 2015, NML Capital Ltd v France, 23242/12; see M Guillou, "Immunité d'exécution diplomatique : irrecevabilité d'une requête devant la CEDH", Dalloz Actualité, February 24 2015.

(2) See CE, October 14 2011, Mme Saleh, 329788 (Rec Lebon), AJDA, 2011, 1980.

(3) Cass civ 1, September 28 2011, NML Capital Ltd v République Argentine, 09-72057, obs H Gaudemet-Tallon in RCDIP 2012, 124 and obs G Cuniberti in JDI 2012, 668.

(4) Final award, July 18 2014, Yukos Universal Limited v The Russian Federation, United Nations Commission on International Trade Law, PCA Case AA 227.

(5) A Ross, "Russia's fury as Yukos shareholders freeze funds in Belgium and France", Global Arbitration Review, June 22 2015.

(6) Cass civ 1, Commisimpex v République du Congo, May 13 2015, 13-17751; see I Gallmeister, "Immunité d'exécution des Etats (renonciation): portée du droit international coutumier", Dalloz 2015, 1108; F Mélin, "Conditions de la renonciation à l'immunité d'exécution des Etats", Dalloz actualité, May 29 2015; S Perry, "Does Congo ruling signal change on immunity?", Global Arbitration Review, June 8 2015.

(7) CA Versailles, Commisimpex v République du Congo, November 15 2012, 11/09073.

(8) Cass civ 1, July 6 2000, Creighton Ltd v Ministère des Finances de l'Etat du Qatar, 98-19068, obs C Kaplan and G Cuniberti in JCP G, 2001, 764; see also obs P Leboulanger in Rev Arb, 2001, 114 and obs E Loquin in RTD Com, 2001, 409: the court held that Article 24 of the 1988 ICC Rules applicable to the dispute (substantially similar to Article 34.6 of the 2012 ICC Rules), which provides that the award-debtor undertakes to enforce the award without delay, amounted to a waiver of the state of Qatar's immunity from enforcement; see also CA Paris, December 12 2001, Creighton Ltd v Ministère des Finances de l'Etat du Qatar, Rev Arb 2003, 417 obs P Leboulanger; CA Rouen, June 20 1996, Société Bec Frères v Office des céréales de Tunisie, Rev Arb 1997, 263.

(9) CA Paris, August 10 2000, Compagnie Noga d'importation et d'exportation v Ambassade de la Fédération de Russie, No XP100800X, obs E Fongaro in Recueil Dalloz, 2000, 2157; see also obs C Kaplan and G Cuniberti in JCP G, 2001, 764 and obs E Loquin in RTD Com, 2001, 409.

(10) UN Vienna Convention on Diplomatic Relations, April 18 1961 (entered into force on April 24 1964), UNTS Vol 500, 95; such reference to the Vienna Convention was vehemently criticised by one commentator, who observed that embassy's bank accounts were not covered by the Vienna Convention and that the court should have rather referred to customary international law (I Pingel-Lenuzza, obs on CA Paris, August 10 2000, XP100800X in JDI 2001, 123, spec 125).

(11) The court based its reasoning on the Preamble and Articles 3 and 22 to 28 of the Vienna Convention.

(12) Article 25 of the Vienna Convention states: "The receiving State shall accord full facilities for the performance of the functions of the mission."

(13) The court based its reasoning on Articles 22(3) and 25 of the Vienna Convention.

(14) L Prezas, Fasc 409-50, Immunités Internationales, JurisClasseur Droit International, Lexis Nexis, 2014, para 59; C Kessedjian, "Immunités", Répertoire de Droit International, Dalloz, 2011, para 129.

(15) Cass civ 1, March 14 1984, Eurodif v République Islamique d'Iran, 82-12462, Rev Arb 1985, 69: the Supreme Court considered that a state's immunity from enforcement does not protect assets allocated to an economic or commercial activity governed by private law and which is the object of the proceedings; Cass civ 1, March 20 1989, Eurodif v République Islamique d'Iran, 86-18701 and 86-18797; see also Cass civ 1, January 25 2005, République Démocratique du Congo v Cabinet CEFIC gestion, 03-18176 (where the court decided that assets related to an economic or commercial activity governed by private law and which is the object of the proceedings are not covered by any immunity; see J-B Donnier, Fasc 496, Immunités d'exécution-droit international, JurisClasseur Voies d'exécution, Lexis Nexis, 2006, para 39).

(16) CA Paris, September 26 2001, République du Cameroun v Société Windslow Bank and Trust, No 2001/12633.

(17) Cass civ 1, September 28 2011, NML Capital Ltd v République Argentine, 09-72057.