Saudi Arabia
v.
Nelson
123 L Ed 2d 47, 58–9; 100
ILR, pp. 545, 550–1, held that the phrase ‘based on’ appearing in the section, meant ‘those
elements of a claim that, if proven, would entitle a plaintiff to relief under his theory of
the case’.
146
849 F.2d 1515.
147
Referring to the cases of
Transamerican Steamship Corp.
v.
Somali Democratic Republic
767 F.2d 998, 1004, where demand for payment in the US by an agency of the Somali
government and actual bank transfers were held to be sufficient, and
Texas Trading &
Milling Corp
. v.
Federal Republic of Nigeria
647 F.2d 300, 312; 63 ILR, pp. 552, 563, where
refusal to pay letters of credit issued by a US bank and payable in the US to financially
injured claimants was held to suffice.
148
119 L Ed 2d 394 (1992); 100 ILR, p. 509.
149
119 L Ed 2d 407; 100 ILR, p. 517, citing 941 F.2d at 152.
i m m u n i t i e s f r o m j u r i s d i c t i o n
725
immunity of a state is unaffected where a state enterprise or other entity
established by a state which has an independent legal personality and is
capable of suing or being sued and acquiring, owning or possessing and
disposing of property, including property which that state has authorised
it to operate or manage, is involved in a proceeding which relates to a
commercial transaction in which that entity is engaged.
Article 2(1)c of the Convention provides that the term ‘commercial
transaction’ means:
(i) any commercial contract or transaction for the sale of goods or the
supply of services;
(ii) any contract for a loan or other transaction of a financial nature, in-
cluding any obligation of guarantee or of indemnity in respect of any
such loan or transaction;
(iii) any other contract or transaction of a commercial, industrial, trading
or professional nature, but not including a contract of employment of
persons.
150
Contracts of employment
Section 4(1) of the State Immunity Act 1978 provides that a state is not
immune as respects proceedings relating to a contract of employment
between the state and an individual where the contract was made in the
UK or where the work is to be performed wholly or in part there.
151
The
section does not apply if at the time of the proceedings the individual is
a national of the state concerned
152
or at the time the contract was made
the individual was neither a national nor habitual resident of the UK or
the parties to the contract have otherwise agreed in writing. However,
these provisions do not apply with regard to members of a diplomatic
mission or consular post,
153
a fact that has rendered section 4(1) signifi-
cantly weaker.
154
There have been a number of cases concerning immunity
and contracts of employment, particularly with regard to employment at
foreign embassies. In
Sengupta
v.
Republic of India
, for example, a broad
150
See as to earlier drafts of this provision, Report of the International Law Commission,
1991, pp. 13 and 69, and
Yearbook of the ILC
, 1986, vol. II, part 2, p. 8.
151
See e.g. H. Fox, ‘Employment Contracts as an Exception to State Immunity: Is All Public
Service Immune?’, 66 BYIL, 1995, p. 97, and R. Garnett, ‘State Immunity in Employment
Matters’, 46 ICLQ, 1997, p. 81.
152
See e.g.
Arab Republic of Egypt
v.
Gamal Eldin
[1996] 2 All ER 237.
153
S. 16(1)a.
154
See e.g.
Saudi Arabia
v.
Ahmed
[1996] 2 All ER 248; 104 ILR, p. 629.
726
i n t e r nat i o na l l aw
decision prior to the 1978 Act, the Employment Appeal Tribunal held on
the basis of customary law that immunity existed with regard to a con-
tract of employment dispute since the workings of the mission in question
constituted a form of sovereign activity.
155
The position in other countries is varied. In
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