When The Court of Final Appeal’s Decision is Not Final - The Congo Case & State Immunity
9 June 2011
Mayer Brown JSM Legal Update
For the first time, the Hong Kong CFA has referred to the Standing Committee of the National People's Congress ("SCNPC") a matter of interpretation of the Basic Law, and the ultimate determination on the application of State immunity in Hong Kong. In a "provisional" judgment handed down yesterday in FG Hemisphere Associates LLC v Democratic Republic of the Congo & Ors (the "Congo Case"), the majority of the CFA has adopted the absolute immunity approach to State immunity. The CFA has also held that a State's submission to arbitration does not constitute an implied waiver of State immunity to execute the arbitral award in the Hong Kong Courts.