4.10 Foreign state immunity and commercial transactions (By Anna White, Mallesons Stephen Jaques) Wells Fargo Bank Northwest National Association v Victoria Aircraft Leasing Limited [2004] VSC 262, Supreme Court of Victoria, J, 19 July 2004 The full text of this judgment is available at: or http://cclsr.law.unimelb.edu.au/judgments (a) Summary Foreign state immunity from jurisdiction under s9 of the Foreign States  Immunities Act 1985 (Cth) (“Act”) is not lost pursuant to the “commercial transaction” exception in s11(1) of the Act if the transaction is predominantly of a political, diplomatic or governmental nature; and Even if a transaction is characterised as a transaction” within  “commercial the terms of s11(1), foreign state immunity can be restored, pursuant to s11(2)(a)(i) of the Act, if all parties to a transaction are foreign states. (b) Facts On 20 February 2004, the United States of America (“United States”) was served with a third party notice (“Notice”) dated 5 September 2003. In this application, the United States sought, inter alia, an order setting aside the Notice on the grounds that: (a) the United States, as a foreign state, was immune from jurisdiction in the proceeding pursuant to the Act; (“Statutory Ground”); and/or (b) the claims made against the United States in the Notice were not justiciable as they required the adjudication of of state” and a of “acts “determination matters bearing upon the validity of acts and transactions of foreign states” (“Non-Justiciability and Act of State Ground”). The determination of the application was a matter of urgency as the of the proceeding’ was to begin shortly. On 27 June ‘recovery 2003, Wells Fargo Bank Northwest National Association (“Wells Fargo”) commenced the recovery proceeding against the defendants in its capacity as security trustee for Export Import Bank of the United States (“Eximbank”). Eximbank is a corporation and an agency of the United States established pursuant to the Export Import Bank Act 1945. All issued capital of Eximbank is held by the United States through the office of the President. In the recovery proceeding, Wells Fargo sought to enforce securities and to exercise its mortgagee remedies in relation to an aircraft owned by Victoria
4.10 Foreign state immunity and commercial transactions (By Anna White, Mallesons Stephen Jaques) Wells Fargo Bank Northwest National Association v Victoria Aircraft Leasing Limited [2004] VSC 262, Supreme Court of Victoria, J, 19 July 2004 The full text of this judgment is available at: or http://cclsr.law.unimelb.edu.au/judgments (a) Summary  Foreign state immunity from jurisdiction under s9 of the Foreign States Immunities Act 1985 (Cth) (“Act”) is not lost pursuant to the “commercial transaction” exception in s11(1) of the Act if the transaction is predominantly of a political, diplomatic or governmental nature; and  Even if a transaction is characterised as a “commercial transaction” within the terms of s11(1), foreign state immunity can be restored, pursuant to s11(2)(a)(i) of the Act, if all parties to a transaction are foreign states. (b) Facts On 20 February 2004, the United States of America (“United States”) was served with a third party notice (“Notice”) dated 5 September 2003. In this application, the United States sought, inter alia, an order setting aside the Notice on the grounds that: (a) the United States, as a foreign state, was immune from jurisdiction in the proceeding pursuant to the Act; (“Statutory Ground”); and/or (b) the claims made against the United States in the Notice were not justiciable as they required the adjudication of “acts of state” and a “determination of matters bearing upon the validity of acts and transactions of foreign states” (“Non-Justiciability and Act of State Ground”). The determination of the application was a matter of urgency as the of the ‘recovery proceeding’ was to begin shortly. On 27 June 2003, Wells Fargo Bank Northwest National Association (“Wells Fargo”) commenced the recovery proceeding against the defendants in its capacity as security trustee for Export Import Bank of the United States (“Eximbank”). Eximbank is a corporation and an agency of the United States established pursuant to the Export Import Bank Act 1945. All issued capital of Eximbank is held by the United States through the office of the President. In the recovery proceeding, Wells Fargo sought to enforce securities and to exercise its mortgagee remedies in relation to an aircraft owned by Victoria
CORPORATE-LAW-ELECTRONIC-BULLETIN-August-2004.docx