"Does Her Majesty's Government (formally) recognise Juan Guaidó or Nicolás Maduro and, if so, in what capacity, on what basis and from when? In that regard:
(i) Has Her Majesty's Government formally recognised Mr Guaidó as Interim President of Venezuela by virtue of the FCO's 19 March 2020 letter to the Court and/or the public statements made by Her Majesty's Government?
(ii) If so, is that recognition as both Head of State and Head of Government? and
(iii) Is any such recognition conclusive pursuant to the 'one voice' doctrine for the purpose of determining the issues in these proceedings?"
"Can this Court consider the validity and/or constitutionality under Venezuelan law of (a) the Transition Statute; (b) Decrees No. 8 and 10 issued by Mr Guaidó; (c) the appointment of Mr Hernández as Special Attorney General; (d) the appointment of the Ad Hoc Administrative Board of BCV; and/or (e) the National Assembly's Resolution dated 19 May 2020, or must it regard those acts as being valid and effective without inquiry? In that regard:
(i) Does the "one voice" doctrine preclude inquiry into the validity of such matters?
(ii) Are such matters foreign acts of state and/or non-justiciable?
(iii) Does the Court lack jurisdiction and/or should it decline as a matter of judicial abstention to determine such issues?"
"The United Kingdom now recognises Juan Guaidó as the constitutional interim President of Venezuela, until credible presidential elections can be held.
The people of Venezuela have suffered enough. It is time for a new start, with free and fair elections in accordance with international democratic standards.
The oppression of the illegitimate, kleptocratic Maduro regime must end. Those who continue to violate the human rights of ordinary Venezuelans under an illegitimate regime will be called to account. The Venezuelan people deserve a better future."
"(i) Who does HMG recognise as the Head of State of the Bolivarian Republic of Venezuela?
(ii) Who does HMG recognise as the Head of Government of the Bolivarian Republic of Venezuela ?"
"The policy of non-recognition does not preclude Her Majesty's Government from recognising a foreign government or making a statement setting out the entity or entities with which it will conduct government to government dealings, where it considers it appropriate to do so in the circumstances.
In this respect we refer you to the statement of the then Foreign Secretary, the Rt Hon J Hunt, on 4 Feb 2019, recognising Juan Guaidó as constitutional interim President of Venezuela until credible elections could be held, in the following terms:"
"33. … The statement made on 4 February 2019 gave effect to the threat made on 26 January 2019. It was in that sense an internationally political statement but it was also a formal statement that HMG now recognised Mr Guaidó as the interim President of Venezuela pending fresh elections. The word 'recognises' denotes a formal statement of consequence. Counsel for the Guaidó Board submitted that it is a word which HMG would not use casually but would use deliberately. I agree. There was now, it was submitted, a recognition of the legal status of Mr Guaidó as President as opposed to a mere expression of political support. I agree. Far from being Delphic the statement was clear and unequivocal in its meaning. There cannot be two Presidents of Venezuela and so it was necessarily implicit in the statement that HMG no longer recognised Mr Maduro as the President of Venezuela."
"36. The argument advanced on behalf of the Maduro Board assumed that the argument being advanced on behalf of the Guaidó Board was that the statement of 4 February 2019 recognised a new government. It was submitted that such an argument could not be right because HMG continued to have full diplomatic relations with Mr. Maduro's government which, it was said, supported by learned authorities in the field of public international law, is compelling evidence that HMG recognised Mr Maduro's government as the government of Venezuela. The difficulty with this argument is that counsel for the Guaidó Board did not submit that there had been a recognition of another government. Their argument concerned, not the government of Venezuela, but the President of Venezuela, albeit that, as is common ground between the parties, the President, as Head of the National Executive, directs the action of the government. The reason counsel for the Guaidó Board concentrated on the President of Venezuela was not only the language used by HMG but also that the appointments which are challenged in the [Bank of England] and [Deutsche Bank] actions by the Maduro Board are appointments made by Mr Guaidó as President of Venezuela. Thus, although there may have been no change in the full and formal diplomatic relations between HMG and the government of Venezuela and although there may have been no change in the exercise of effective administrative control in Venezuela (as alleged by the Maduro Board but denied by the Guaidó Board) there has been, on the case of the Guaidó Board, a change in the person recognised by HMG as the President of Venezuela. It is unnecessary for the Guaidó Board to say there has been a change of government and they have not said that. Counsel for the Guaidó Board accepted that the question of 'government' in Venezuela is 'difficult' because some parts of the state of Venezuela support Mr Maduro and, they submitted, some parts of it support Mr Guaidó."
"47. … where HMG unequivocally recognises a person as the de jure (or constitutional) President the court must give effect to that unequivocal recognition notwithstanding that another person was formerly the de jure or de facto President and claims still to be. The judiciary and the executive must speak with one voice. The courts cannot investigate the conduct of HMG (either before or after the recognition) to see whether its conduct suggests that it in fact had a different view from that stated unequivocally by HMG."
"There is no room for recognition of Mr Guaidó as de jure President and of Mr Maduro as de facto President."
"50. … Should it hereafter become necessary to investigate what conclusion should be drawn from the matters relied upon by counsel for the Maduro Board it would be fair and just and consistent with the overriding objective for the Guaidó Board to have the opportunity to adduce evidence on such matters. Their counsel indicated, by reference to Oppenheim's International Law 8th.ed., paragraph 50, that there might be substantial arguments concerning implied recognition and in particular as to whether recognition can be implied from the retention of diplomatic relations. These matters, if they have to be decided, should only be decided after both parties have had the opportunity to adduce evidence. But on my understanding of the unequivocal meaning of HMG's statement of recognition and of the effect of the 'one voice' doctrine they do not arise for decision."
3,  AC 964 as deciding that there are three rules forming the doctrine of foreign act of state pursuant to which the court will not readily adjudicate upon the lawfulness or validity of sovereign acts of foreign states. These were the rules stated by Lord Neuberger at  to :
"121. The first rule is that the courts of this country will recognise, and will not question, the effect of a foreign state's legislation or other laws in relation to any acts which take place or take effect within the territory of that state.
122. The second rule is that the courts of this country will recognise, and will not question, the effect of an act of a foreign state's executive in relation to any acts which take place or take effect within the territory of that state.
123. The third rule has more than one component, but each component involves issues which are inappropriate for the courts of the United Kingdom to resolve because they involve a challenge to the lawfulness of the act of a foreign state which is of such a nature that a municipal judge cannot or ought not rule on it …"
(1) The Foreign Secretary's statement recognising Mr Guaidó and the FCO's confirmation to the court that the position is unchanged must be understood in their factual context. That requires consideration not only of the language of the statement, but also of the fact of continuing full reciprocal diplomatic relations with Mr Maduro's government and of HMG's decision not to accord diplomatic status to Mr Guaidó's representative in London.
(2) So understood, the statement is a recognition of Mr Guaidó as head of state de jure but not de facto, and does not amount to a recognition of him as head of government either de jure or de facto.
(3) The "one voice" principle does not apply to recognition de jure, such recognition being no more than a statement of opinion by HMG as to the position under the law of the foreign state.
(4) In any event the judge was wrong to hold that the "one voice" principle precluded the possibility that HMG continued to recognise Mr Maduro as head of state or head of government de facto; and wrong also to hold that evidence of HMG's maintenance of continuing diplomatic relations with Mr Maduro was irrelevant.
(5) Moreover, this being a new point on appeal, if HMG had recognised Mr Guaidó as President de facto, such recognition was unlawful because it amounted to coercive intervention in the internal affairs of a foreign state which is prohibited by customary international law, incorporated into and existing as part of English common law.
"Preliminary points of law are too often treacherous short cuts. Their price can be, as here, delay, anxiety, and expense."
"Our Sovereign has to decide whom he will recognize as a fellow sovereign in the family of States; and the relations of the foreign State with ours in the matter of State immunities must flow from that decision alone."
"Following the undertaking my right honourable friend the Lord Privy Seal in another place on 18th June last we have conducted a re-examination of British policy and practice concerning the recognition of Governments. This has included a comparison with the practice of our partners and allies. On the basis of this review we have decided that we shall no longer accord recognition to Governments. The British Government recognises States in accordance with common international doctrine.
Where an unconstitutional change of regime takes place in a recognised State, Governments of other States must necessarily consider what dealings, if any, they should have with the new regime, and whether and to what extent it qualifies to be treated as the Government of the State concerned. Many of our partners and allies take the position that they do not recognise Governments and that therefore no question of recognition arises in such cases. By contrast the policy of successive British Governments has been that we should make and announce a decision formally 'recognising' the new Government.
This practice has sometimes been misunderstood, and, despite explanations to the contrary, our 'recognition' interpreted as implying approval. For example, in circumstances where there might be legitimate public concern about the violation of human rights by the new regime, or the manner in which it achieved power, it has not sufficed to say that an announcement of 'recognition' is simply a neutral formality.
We have therefore concluded that there are practical advantages in following the policy of many other countries in not according recognition to Governments. Like them, we shall continue to decide the nature of our dealings with regimes which come to power unconstitutionally in the light of our assessment of whether they are able of themselves to exercise effective control of the territory of the State concerned, and seem likely to continue to do so."
"Recognition can be either express or implied. Express recognition takes place by a notification or declaration clearly announcing the intention of recognition, such as a note addressed to the state or government which has requested recognition. Implied recognition takes place through acts which, although not referring expressly to recognition, leave no doubt as to the intention to grant it. Implied recognition has taken on greater significance with the adoption by several states, including the United Kingdom, of a policy of no longer expressly recognising a new government, but instead leaving the answer to the question whether it qualifies to be treated as a government to be inferred from the nature of their dealings with it, and in particular whether these dealings are on a normal government-to-government basis."
"Where Her Majesty's Government is dealing with the foreign government on a normal government to government basis as the government of the relevant foreign state, it is unlikely in the extreme that the inference that the foreign government is the government of that state will be capable of being rebutted and questions of public policy and considerations of the interrelationship of the judicial and executive arms of government may be paramount: see The Arantzazu Mendi  AC 256, 264 and Gur Corporation v Trust Bank of Africa Ltd  QB 599,625. But now that the question has ceased to be one of recognition, the theoretical possibility of rebuttal must exist."
"Here no question of the recognition of a state is involved. Nor does this case involve any accredited representative of a foreign state in this country. Different considerations would arise if it did, since it would be contrary to public policy for the court not to recognise as a qualified representative of the head of state of the foreign state the diplomatic representative recognised by Her Majesty's Government. There is no recognised diplomatic representative of the Republic of Somalia in the United Kingdom."
"A de jure government is one which, in the opinion of the person using the phrase, ought to possess the powers of sovereignty, though at the time it may be deprived of them. A de facto government is one which is really in possession of them, although the possession may be wrongful or precarious".
"… it is international law which defines the conditions under which a Government should be recognised de jure or de facto, and it is a matter of judgment in each particular case whether a regime fulfils the conditions. The conditions under international law for the recognition of a new regime as the de facto Government of a State are that the new regime has in fact effective control over most of the State's territory and that this control seems likely to continue. The conditions for the recognition of a new regime as the de jure Government of a State are that the new regime should not merely have effective control over most of the State's territory, but that it should, in fact, be firmly established. His Majesty's Government consider that recognition should be accorded when the conditions specified by international law are, in fact, fulfilled and that recognition should not be given when these conditions are not fulfilled. The recognition of a Government de jure or de facto should not depend on whether the character of the regime is such as to command His Magistrate's Government's approval."
"States granting recognition often distinguish between de jure recognition and de facto recognition. These terms are convenient but elliptical: the terms de jure or de facto qualify the state or government recognised rather than the act of recognition itself. Those terms are in this context probably not capable of literal analysis, particularly in terms of the ius to which recognition de jure refers. The distinction between de jure and de facto recognition is in essence that the former is the fullest kind of recognition while the latter is a lesser degree of recognition, taking account on a provisional basis of present realities. Thus de facto recognition takes place when, in the view of the recognising state, the new authority, although actually independent and wielding effective power in the territory under its control, has not acquired sufficient stability or does not as yet offer prospects of complying with other requirements of recognition."
"It has long been settled that on any question of the status of any foreign power the proper course is that the Court should apply to His Majesty's Government, and that in any such matter it is bound to act on the information given to them through the proper department. Such information is not in the nature of evidence; it is a statement by the Sovereign of this country through one of his Ministers upon a matter which is peculiarly within his cognizance.
The letter of the Colonial Office is not an expression of the opinion of the official who wrote it. The first sentence is: 'I am directed by Mr Secretary Churchill to inform you in reply to your letter of 18th July that Kelantan is an independent state in the Malay Peninsula and that His Highness Ismail' (etc) 'is the present ruler thereof'. This is an official answer by the Secretary of State on behalf of the Government."
"Our State cannot speak with two voices on such a matter, the judiciary saying one thing, the executive another."
"1. This appeal concerns the scope and effect of the 'one voice' principle which is that where Her Majesty's Government has recognised the existence of a foreign state, or a person or body as the government of a foreign state, the English Court is bound to treat the state as a sovereign state, and the government as the government of a sovereign state, in its determination of disputes before it. The Court does so because in this country the recognition of foreign states and governments is constitutionally part of the function of Her Majesty's Government as the executive branch of the state, and the Crown must speak with one voice in its executive and judicial functions in this aspect of international relations."
"In the present case the reply of the Secretary of State shows clearly that notwithstanding the engagements entered into by the Sultan of Kelantan with the British Government that Government continues to recognize the Sultan as a sovereign and independent ruler, and that His Majesty does not exercise or claim any rights of sovereignty or jurisdiction over that country. If after this definite statement a different view were taken by a British Court, an undesirable conflict might arise; and, in my opinion, it is the duty of the Court to accept the statement of the Secretary of State thus clearly and positively made as conclusive upon the point."
"As Lord Esher said in the case of Mighell v Sultan of Johore  1 QB 149, 158: 'When once there is the authoritative certificate of the Queen through her Minister of State as to the status of another sovereign, that in the Courts of this country is decisive'. Indeed, it is difficult to see in what other way such a question could be decided without creating chaos and confusion
"Our Government has recognized the present Russian Government as the de jure Government of Russia, and our Courts are bound to give effect to the laws and acts of that Government so far as they relate to property within that jurisdiction when it was affected by those laws and acts."
"There is ample authority for the proposition that there is no difference for the present purposes between a recognition of a State de facto as opposed to de jure."
"24. Ms Fatima QC rightly emphasised that deference to the executive, as the voice of the Crown in the matter of recognising fellow sovereign States (and/or their governments from time to time), cannot fetter the role of the court in matters not themselves dictated by that voice. Thus, for example, in the present case, though HMG has treated Dr Mahmoud as representing the LIA, pursuant to its recognition of the GNA/PC as the extant government of Libya, HMG has not purported to certify to the court any position as to whether any process adopted by the GNA/PC to appoint Dr Mahmoud was valid and effective under Libyan law. Had HMG purported to do so, that would not bind the court; indeed, it would I think be irrelevant in proceedings to which HMG was not itself a party."
"There may be occasions, when for reasons of State full, unconditional or permanent recognition has not been accorded by the Crown, and the answer to the question put has to be temporary if not temporising, or even where some vaguer expression has to be used. In such cases not only has the Court to collect the true meaning of the communication for itself, but also to consider whether the statements as to sovereignty made in the communication and the expressions 'sovereign' or 'independent sovereign' used in the legal rule mean the same thing."
"The first question for a court when presented with this certificate (for convenience I treat the two as a single statement) is to consider whether it completely states the facts and whether there is any ambiguity in it. If so, it may be appropriate to ask the Secretary of State for a supplementary statement."
"The rule that the judiciary and the executive must speak with one voice presupposes that the judiciary can understand what the executive has said. In most cases there could hardly be any doubt in the matter. But in a case like the present, where there is a doubt, the judiciary must resolve it in the only way they know, which is to look at the question and then construe the answer given. It is not for the judiciary to criticise any obscurity in the expressions of the executive, nor to inquire into their origins or policy. They must take them as they stand."
"34. Accordingly the question whether there has or has not been an unequivocal recognition in this case falls to be determined from the terms of the two FCO letters and the public stance HMG has taken in its statements and conduct."
"39. These leave no room for any doubt that HMG has recognised the GNA as the executive arm of government with sole oversight of executive functions which include protection of Libya's oil revenues and its financial institutions including the LIA. …".
"The U.S.S.R. having the de jure sovereignty over the so-called German Democratic Republic there is no room for any other de facto recognition and the courts of this country must hold that the U.S.S.R. is still entitled to exercise authority over the territory and to bring to an end the German Democratic Republic which only exists on sufferance."
"Her Majesty's Government have not granted any recognition de jure or de facto to (a) the 'German Democratic Republic' or (b) its 'Government'."
"Her Majesty's Government have recognised the State and Government of the Union of Soviet Socialist Republics as de jure entitled to exercise governing authority in respect of [the Soviet zone, i.e. East Germany]. … Apart from the states, Governments and Control Council aforementioned, Her Majesty's Government have not recognised either de jure or de facto any other authority purporting to exercise governing authority in respect of the zone."
"It is a firmly established principle that the question whether a foreign state, ruler or government is or is not sovereign is one on which our courts accept as conclusive information provided by Her Majesty's Government: no evidence is admissible to contradict that information."
"I have no temptation, in a matter of this kind, to speculate or to read into the certificate anything which is not there, but I cannot find that the certificate is either incomplete or ambiguous. In stating that the U.S.S.R. is exercising de jure governing authority and that no other body is exercising de facto authority, the two certificates to my mind say all that need or can be said. De jure recognition in all cases but one is the fullest recognition which can be given: the one exception is the case where there is concurrently some other body de facto exercising a rival authority to that of the 'de jure' sovereign (as in the case of Banco de Bilbao v Sancha. But any such possibility as this is excluded by the terms of the certificates. Moreover, some more enlightenment (if any be needed) as to what is meant by de jure recognition may be drawn from the official statement made by Mr Secretary Morrison on March 21, 1921, (quoted in full by my noble and learned friend, Lord Reid) in which he said:
'The conditions for the recognition of a new regime as the de jure government of a state are that the new regime should not merely have effective control over most of the state territory, but that it should, in fact, be firmly established'
- a statement which is not necessarily binding on successor Secretaries of State but which is reproduced, as still effective, in the 1963 edition of Brierly's Laws of Nations (p. 148). This shows that, if nothing more is said, de jure recognition presupposes effective control in fact. It is consistent with this approach that Mr Secretary Gordon Walker, when asked what states or governments are recognised as (a) entitled to exercise or (b) exercising governing authority, answered only the first question: after doing so there was no occasion to go further. That in doing so there was no intention to deny effective control in fact to the de jure sovereign is shown by the fact that the reply relates, without distinction, to the whole period from 1945-1964. For at any rate for some years after 1945, it would not be possible to dispute that the U.S.S.R. was directly governing the Eastern Zone, which must dispose of any conjecture that in the words he has used for the period as a whole the Secretary of State is distinguishing between what could be done and the actuality of the situation. The certificates therefore in my opinion establish the U.S.S.R. as de jure entitled to exercise governing authority and in full control of the area of the Eastern Zone."
(1) the pre-existing recognition of Mr Maduro as President of Venezuela in the fullest sense, or perhaps more accurately, HMG's unequivocal dealings with him as head of state;
(2) the acknowledgement in the statement that the Maduro regime continues to exercise substantial, albeit "illegitimate", control over the people of Venezuela;
(3) the continued maintenance of diplomatic relations with the Maduro regime, including through an ambassador accredited to Mr Maduro as President of Venezuela;
(4) the fact that HMG has declined to accord diplomatic status to Mr Guaidó's representative in London; and
(5) the established existence of a distinction between recognition de jure (i.e. that a person is entitled to a particular status) and de facto (i.e. that he does in fact exercise the powers that go with that status).
Question : Does Her Majesty's Government (formally) recognise Juan Guaidó or Nicolás Maduro and, if so, in what capacity, on what basis and from when?
Answer : HMG has since 4th February 2019 formally recognised Mr Guaidó as the de jure President of Venezuela, that is to say as the person entitled to be regarded as the President of Venezuela.
In that regard:
Question : (i) Has Her Majesty's Government formally recognised Mr Guaidó as Interim President of Venezuela by virtue of the FCO's 19 March 2020 letter to the Court and/or the public statements made by Her Majesty's Government?
Answer : Yes.
Question (ii) If so, is that recognition as both Head of State and Head of Government?
Answer : Head of State.
Question (iii) Is any such recognition conclusive pursuant to the "one voice" doctrine for the purpose of determining the issues in these proceedings?
Answer : No. While such recognition is conclusive for the purpose of determining who is the de jure President of Venezuela, it leaves open the possibility that HMG may impliedly recognise Mr Maduro as the de facto President of Venezuela.
(1) HMG recognises Mr Guaidó as President of Venezuela for all purposes and therefore does not recognise Mr Maduro as President for any purpose; or
(2) HMG recognises Mr Guaidó as entitled to be the President of Venezuela and thus entitled to exercise all the powers of the President but also recognises Mr Maduro as the person who does in fact exercise some or all of the powers of the President of Venezuela.
(1) HMG's power to recognise a foreign head of state is based on the Crown's prerogative power to conduct foreign affairs (R (Miller) v Secretary of State for Exiting the European Union  UKSC 5,  AC 61 at ).
(2) The exercise of prerogative powers is subject to legal limits and it is for the courts to determine the existence of these limits and whether they have been exceeded in any particular case (R (Miller) v Prime Minister  UKSC 41,  AC 373 at  to , where the Supreme Court drew a distinction between an issue concerning the lawful limits of a prerogative power and whether those limits have been exceeded on the one hand and an issue concerning the lawfulness of the exercise of such a power within its lawful limits on the other).
(3) There is a well-established rule of customary international law which prohibits coercive interference in the internal affairs of other states (Nicaragua v United States of America  ICJ Reports 14 at  to ).
(4) This rule of customary international law is incorporated into and forms part of English common law (Trendtex Trading Corporation v Central Bank of Nigeria  1 QB 529 at 553-4; R (Keyu) v Secretary of State for Foreign and Commonwealth Affairs  UKSC 69,  AC 1355 at  to ).
(5) Recognition of Mr Guaidó as de facto President of Venezuela would constitute coercive interference in the internal affairs of Venezuela, which is therefore in breach of the common law limit on the prerogative power of recognition.
(6) Accordingly, the court should decline to give legal effect to the Foreign Secretary's statement of recognition.
"Notwithstanding the multiplicity of declaration by States accepting the principle of non-intervention, there remain two questions: first, what is the exact content of the principle so accepted, and secondly, is the practice sufficiently in conformity with it for this to be a rule of customary international law? As regards the first problem – that of the content of the principle of non-intervention – the Court will define only those aspects of the principle which appear to be relevant to the resolution of the dispute. In this respect it notes that, in view of the generally accepted formulations, the principle forbids all States or groups of States to intervene directly or indirectly in the internal or external affairs of other States. A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle of State sovereignty, to decide freely. One of these is the choice of a political, economic, social and cultural system, and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones. The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention, is particularly obvious in the case of an intervention which uses force, either in the direct form of military action, or in the indirect form of support for subversive or terrorist armed activities within another State. …"
"It must be emphasised that to constitute intervention the interference must be forcible or dictatorial, or otherwise coercive, in effect depriving the state intervened against of control over the matter in question. Interference pure and simple is not intervention. There are many acts which a state performs which touch the affairs of another state, for example granting or withholding recognition of its government, good offices, various forms of cooperation, making representations, or lodging a protest against an allegedly wrongful act: but these do not constitute intervention, because they are not forcible or dictatorial."
"121. The first rule is that the courts of this country will recognise, and will not question, the effect of a foreign state's legislation or other laws in relation to any acts which take place or take effect within the territory of that state.
122. The second rule is that the courts of this country will recognise, and will not question, the effect of an act of a foreign state's executive in relation to any acts which take place or take effect within the territory of that state."
"136. I find aspects of the second rule in relation to property and property rights more problematical. In so far as the executive act of a state confiscating or transferring property, or controlling or confiscating property rights, within its territory is lawful, or (which may amount to the same thing) not unlawful, according to the law of that territory, I accept that the rule is valid and well-established.
137. However, in so far as the executive act is unlawful according to the law of the territory concerned, I am not convinced, at least in terms of principle, why it should not be treated as unlawful by a court in the United Kingdom. Indeed, if it were not so treated, there would appear something of a conflict with the first rule. None the less, I accept that there are dicta which can be fairly said to support the existence of the rule even where the act is unlawful by the laws of the state concerned (see para 127 above).
138. However, I am not persuaded that there is any judicial decision in this jurisdiction whose ratio is based on the proposition that the second rule applies to a case where the state's executive act was unlawful by the laws of the state concerned. Thus, the Duke of Brunswick's case Carr v Fracis, Luther v Sagor and Princess Paley Olga's case all involved acts which were apparently lawful according to the laws of the state concerned (being pursuant to a bill or decree), and there is no suggestion of unlawfulness in relation to the acts in Blad or Dobree. Similarly, there is nothing to suggest that, when Lord Wilberforce suggested in the Buttes Gas case at p 931 that an 'act of state' extended to 'a foreign municipal law or executive act', he intended to refer to an executive act which was unlawful by the laws of the state concerned, let alone, where the act took place in the territory of another state, by the laws of that state. At best, therefore, there are simply some obiter dicta which support the notion that the second rule can apply to executive acts which are unlawful by the laws of the state concerned.
139. There is support for the notion that the second rule does not apply to executive acts which are not lawful by the laws of the state concerned in Dicey, Morris and Collins on The Conflict of Laws, 15th ed (2012), which sets out Rule 137, at para 25R-001, in these terms:
'A governmental act affecting any private proprietary right in any movable or immovable thing will be recognised as valid and effective in England if the act was valid by the law of the country where the thing was situated (lex situs) at the moment when the act takes effect, and not otherwise.'
140. Further, it does not appear to me that the common law regards it as inappropriate for an English court to decide whether a foreign state's executive action infringed the law of that state, at least where that is not the purpose of the proceedings. Support for that view is to be found in the judgment of Diplock LJ in Buck v Attorney General  Ch 745, 770, and of Arden and Elias LJJ in Al-Jedda v Secretary of State for Defence  QB 773 at paras 74 and 189 respectively.
142. Having said that, there is pragmatic attraction in the argument that an executive act within the state, even if unlawful by the laws of that state, should be treated as effective in the interest of certainty and clarity, at least in so far as it relates to property and property rights. In relation to immovable property within the jurisdiction of the state concerned, there appear to be good practical reasons for a foreign court recognising what may amount to a de facto, albeit unlawful, transfer of, or other exercise of power over, such property. So far as movable property or other property rights are concerned, if by an executive, but unlawful act, the state confiscates such property within its territory, the same point applies so long as the property remains within the territory of that state. And there is practical sense, at any rate at first sight, if when the property is transferred to another territory following a sale or other transfer by the state, the transferee is treated as the lawful owner by the law of the other territory. However, there are potential difficulties: if the original confiscation was unlawful under the laws of the originating state, and the courts of that state were so to hold, or even should so hold, it is by no means obvious to me that it would be, or have been, appropriate for the courts of the subsequent state to treat, or have treated, the confiscation as valid.
143. The question whether the second rule exists in relation to executive acts which interfere with property or property rights within the jurisdiction of the state concerned, and which are unlawful by the laws of that state, is not a point which needs to be decided on the present appeal. Property rights do not come into this appeal, and no doubt for that very reason, the point was not debated very fully before us. Accordingly, it seems to me that it is right to keep the point open."
"65. … In states subject to the rule of law, a state's sovereignty may be manifest through its legislative, executive or judicial branches acting within their respective spheres. Any excess of executive power will or may be expected to be corrected by the judicial arm. A rule of recognition which treats any executive act by the government of a foreign state as valid, irrespective of its legality under the law of the foreign state (and logically, it would seem, irrespective of whether the seizure was being challenged before the domestic courts of the state in question), could mean ignoring, rather than giving effect to, the way in which a state's sovereignty is expressed. The position is different in successful revolutionary or totalitarian situations, where the acts in question will in practice never be challenged. It is probably unsurprising that the cases relied upon as showing the second kind of foreign act of state are typically concerned with revolutionary situations or totalitarian states of this kind."
"230. Thus it is well established that municipal law act of state applies not just to legislative expropriations of property, but to expropriations by executive acts with no legal basis at all. Examples include Duke of Brunswick v King of Hanover and Princess Paley Olga v Weisz, and the United States decisions in Hatch v Baez, Underhill v Hernandez, and Oetjen v Central Leather Co. These transactions are recognised in England not because they are valid by the relevant foreign law, but because they are acts of state which an English court cannot question. Strictly speaking, on the footing that the decree authorising the seizure of Princess Paley Olga's palace did not extend to her chattels, the acts of the revolutionary authorities in seizing them were Russian law torts. But once the revolutionary government was recognised by the United Kingdom, it would have been contrary to principle for an English court to say so.
232. One might ask why an English court should shrink from determining the legality of the executive acts of a foreign state by its own municipal law, when it routinely adjudicates on foreign torts and foreign breaches of contract. The answer is that the law distinguishes between exercises of sovereign authority and acts of a private law character. It is fair to say that the decided cases on this point generally involved internal revolutions or civil wars leading to a breakdown of law of a kind which could ultimately be resolved only by force. Other countries implicitly recognise the outcome diplomatically with retrospective effect, and their courts follow suit. Similar problems can arise in relation to the acts of totalitarian states where there may be no rule of law even in normal times. But I do not think that the act of state doctrine can be limited to cases involving a general breakdown of civil society or states without law. Quite apart from the formidable definitional problems to which such an approach would give rise, the basis of the doctrine is not the absence of a relevant legal standard but the existence of recognised limits on the subject-matter jurisdiction of the English courts."
"The whole question seems to me to turn upon this (that is to say, for the purpose of this decision, it has not been otherwise contended at the bar, and if it had been, it is quite clear that it could not be maintained), that a foreign Sovereign, coming into this country, cannot be made responsible here for an act done in his sovereign character in his own country; whether it be an act right or wrong, whether according to the constitution of that country or not, the Courts of this country cannot sit in judgment upon an act of a Sovereign, effected by virtue of his Sovereign authority abroad, an act not done as a British subject, but supposed to be done in the exercise of his authority vested in him as Sovereign."
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